Kartari v Kewal Krishan (1972)

Tila Bewa (case 17) shows a gift that could not be revoked. Kartari shows one that was set aside — and by the other route. Section 126 says a gift may be revoked in any case in which, if it were a contract, it might be rescinded. Undue influence is such a case, and this judgment is the fullest statement on the syllabus of:

- the two questions a court must ask in every undue influence case; - the shifting of the burden of proof where the transaction is unconscionable; - the rule that the protection given to a pardanashin woman extends to any illiterate and ignorant woman; and - the standard of proof required — that the disposition "must really be the mental act, as its execution is the physical act, of the person who makes it."

Shrimati Basanti was the exclusive owner of 20 kanals 16 marlas at Mauza Badhara. She was old — the evidence put her age between 60 and 90, and the Court found it "near about 70 years" — ailing, illiterate, and, on the plaintiff's case, pardanashin. Her only child was Kartari, the plaintiff, a widow within four years of her marriage, childless, with no landed property of her own.

In March or April 1961 Kartari went to her husband's house. In her absence the defendants, Kewal Krishan and Mula Ram, collaterals in the fourth degree of Basanti's husband, took Basanti to Una under the pretext of getting her treated by a doctor, and on 4 April 1961 obtained a gift-deed of her entire landed property, registered the same day.

On her daughter's return Basanti could not remember the transaction, saying only that she had been made to sign some transfer deed. On 24 or 25 April 1961 the two women went to Una and had a complaint to the Superintendent of Police scribed, saying the deed had been obtained by undue influence and fraud. Three or four days later Basanti died. The complaint had described the transfer as being to all four brothers, whereas the gift was in fact to the two defendants only — a discrepancy the Court used to show she did not know what she had signed.

The trial court cancelled the deed and decreed possession; the District Judge reversed. Second appeal.

Was the gift-deed of 4 April 1961 obtained by undue influence, and on whom did the burden of proof lie?

The gift was obtained by undue influence and was set aside. The appeal was allowed with costs throughout and the suit for possession decreed.

"The Court trying a case of undue influence must consider two things to start with, namely: (i) Are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor? and (ii) Has the donee used that position to obtain an unfair advantage over the donor?"

And then the third question that follows: "Upon the determination of these issues, a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then 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." The authority given is Subhash Chandra v Ganga Prasad.

- Age and illness. She was about seventy and ailing; even the defendants' own witness said she had been brought for treatment, and could say nothing about any treatment actually given. - The pretext. The Court concluded "the lady was taken to Una under the pretext of giving her a treatment." - The daughter's absence. The deed was obtained while the only daughter was away, and "the defendants avoided the presence of the plaintiff at all relevant time of the execution and registration of the deed." - The beneficiary ran the transaction. Kewal Krishan engaged the scribe, brought the witnesses, and presented the lady for registration. The Court applied the Privy Council rule in Vellaswamy Servai v L. Sivaraman Servai, a probate case whose ratio it held equally applicable: "Where the propounder of a will is the principal beneficiary under it and has taken a leading part in giving instructions for the execution of the will and procuring its registration and execution, the circumstances are such as would excite the suspicion of any probate Court and require it to examine the evidence in support of the will with great vigilance and scrutiny." - The stated consideration was false. The deed recited that the defendants had long been serving her; there was "no evidence worth the name" of any such service. And if, as they said in court, her real motive was to keep the property in her husband's line, the Court asked the obvious question: "If that was the reason for making the gift, why it was not mentioned in the deed itself?" - The transaction was unconscionable. "the mother deprived her dependent daughter of her entire share in the properties. Besides this, the donor herself never kept any land for her maintenance. Had she remained alive for some substantial period, she would have been entirely dependent for livelihood upon the defendants. She would not have agreed to such a transaction." - She repudiated it herself. The scribe's register entry, kept in the regular course of business, was held to be primary evidence of the complaint, and proved both her objection and her ignorance of the deed's contents.

The District Judge had therefore "placed a wrong burden of proof upon the plaintiff". Fraud was not made out, "but nonetheless the case of undue influence was proved and that is sufficient to set aside the document."

Following Chinta Dasya v Bhalku Das: "Rules regarding transactions by 'pardanashin' women are equally applicable to illiterate and ignorant women though not 'pardanashin'." The reasoning is worth quoting because it is the principle behind the whole class of protective rules: to restrict the rule to pardanashin women "clearly would be to confer an unfair advantage upon rich women as compared with poor women. The object of the rule of law is to protect the weak and helpless and it would not be restricted to a particular class of the community."

From the Privy Council in Mt. Farid-un-nisa v Mukhtar Ahmad:

"The real point is that the disposition made must be substantially understood and must really be the mental act, as its execution is the physical act, of the person who makes it."

And on proof: "The parties to prove the state of the settlor's mind are the parties who set up and rely on the deed. They must satisfy the Court that the deed has been explained to and understood by the party thus under disability, either before execution, or after it under circumstances which establish adoption of it with full knowledge and comprehension." Mere execution without protest is "in itself no real proof of a true understanding mind in the executing"; the usual evidence is that the deed was read over and, where necessary, explained, and if in a language she does not understand, translated, remembering that "the clearness of the meaning of the deed will suffer in the process". How much explanation is required "must depend on the circumstances of each case."

A practical warning the case supplies: the Sub-Registrar's endorsement carries a presumption, but "such endorsements are made out, in a routine fashion" and the presumption "can be rebutted by proper evidence."

1. In every case of undue influence the court asks: (i) was the donee in a position to dominate the will of the donor, and (ii) did he use that position to obtain an unfair advantage? If the transaction is unconscionable, the burden of disproving undue influence shifts to the dominant party. 2. That the principal beneficiary took a leading part in instructing, executing and registering the deed is itself a suspicious circumstance calling for vigilant scrutiny. 3. The protective rules developed for pardanashin women apply equally to any illiterate and ignorant person, because the object is to protect the weak and helpless. 4. Those setting up the deed must prove that the disponor substantially understood it; execution without protest is no proof, and the registrar's routine endorsement is rebuttable.