“SUBHAS CHANDRADAS MUSHIB v.

GANGA PRASAD DAS

MUSHIB, AIR 1967 SC 878”

SUBMITTED BY :SWASTIK

BA.LLB (HONS.)

CUSB2013125126

2nd SEMESTER

2020-25

SUBMITTED TO : DR. PRADIP KUMAR DAS

(FACULTY OF CONTRACT- I)

(BALAW2001C04)

CENTRAL UNIVERSITY OF SOUTH BIHAR, GAYA

 ACKNOWLEDGEMENT

A project is a joint endeavor which is to be accomplished with utmost

compassion, diligence and with support of all. Gratitude is a noble response
of one’s soul to kindness or help generously rendered by another and its
acknowledgement is the duty and joyance. I am overwhelmed in all
humbleness and gratefulness to acknowledge from the bottom of my heart
to all those who have helped me to put these ideas, well above the level of
simplicity and into something concrete effectively and moreover on time.

This project would not have been completed without combined effort of my
friend Saumya kumar singh & Prashant whose support and guidance was the
driving force to successfully complete this project. I express my heartfelt
gratitude to them. Thanks are also due to my parents, family, siblings, my
friends and all those who helped me in this project in any way. Last but not
the least; I would like to express my sincere gratitude to our teacher of
‘CONTRACT I’ for providing us with such a golden opportunity to
showcase our talents. Also this project was instrumental in making me
understand more about Consent in contracts.

Moreover, thanks to all those who helped me in any way be it words,

presence, encouragement or blessings.

Swastik

2013125126
 RESEARCH PROBLEM

 What is undue influence?

 What is the effect of undue influence on a contract?

 In what circumstances does undue influence occur?

 RESEARCH METHODOLOGY

The researcher will do doctrinal type of research in which he will go through the
secondary sources. The researcher through this methodology will be able to get
bird’s eye view of the problem in question. The doctrinal method helps in doing a
comparative study of the topic.

SOURCES OF DATA COLLECTION

The researcher will collect the data from secondary sources.

Secondary sources used

1. Internet resources

2. Case studies.

3. Case laws/judgments.

4. Books and Magzine

LIMITATION OF THE STUDY

Since the researcher is student of law, he has very less time to analyse something
of this vast stature. The topic being very specific has made it difficult to study the
nuances and subtleties of the topic. However, the Researcher has tried his best to
analyse and study the topic
 RESEARCH HYPOTHESIS

Research Hypothesis: It is hypothesized that the deed of gift was brought about by
the undue influence .

Discipline and Sub-Disciplines: Law (INDIAN CONTRACT ACT 1872);

CONSENT IN FORMING CONTRACT
 Contents

INTRODUCTION……………………………………………………………..7

FACT OF THE CASE…………………………………………………………8

ISSUES OF THE CASE...................................................................................10

INVOLVED SECTION OF INDIAN CONTRACT ACT...............................11

ANALYSIS OF THE JUDGEMENT...............................................................13

LIST OF CASES REFERED............................................................................14

BIBLIOGRAPHY…………………………………………………………….17
 INTRODUCTION

Appellants: Subhas Chandra Das Mushib

V.
Respondent: Ganga Prasad Das Mushib and Ors

AIR 1967 SC 878

DATE OF JUDGMENT: 14/09/1966

BENCH: MITTER, G.K. WANCHOO, K.N, SHELAT, J.M

“This case is from a judgment 1and decree of the High Court of Calcutta on a
certificate granted by it reversing a decision of the Subordinate Judge of Bankura
dismissing the plaintiff's suit for declaring that a deed of settlement (Nirupan
Patra) executed by the plaintiff's father and the plaintiff's sister in favour of the
plaintiff's brother's son registered on July 22, 1944 in respect of properties situate
in village Lokepur was fraudulent, collusive and invalid and for cancellation of the
said document”

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 FACT OF THE CASE

The Father of plaintiff, Prasanna Kumar, owned certain lands in two villages,
namely, Parbatipur and Lokepur, possess an eight annas share in both. The total
valuation of the properties is unknown, but it would not be wrong to say that the
Lokepur properties, were the much valuable ones. Prasanna Kumar died in early
1948 He had two sons, namely, Ganga Prosad, the plaintiff, and Balaram, the
second defendant in the suit,
besides a daughter Swarnalata, and an only grandson Subhas Chandra, who was
the first defendant in the suit. Ganga Prosad had no son. He had served in the
Medical School at Bankura from 1932 to 1934. Thereafter he worked as a
contractor for one year From November 1944 to 1948 he served in Searsole Raj
Estate. The family consisted of Prasanna and his wife, their two sons and their
wives, besides the grand-son Subhas Chandra and Prasanna's daughter Swarnalata
who became a widow in her childhood and was residing with her parents. It
appears that Balaram always lived with his father and was never employed
elsewhere. According to the plaintiff's own evidence he was looking after the
property of his father so long as he was at Bankura. The Lokepur properties were
put to auction in execution of a decree for arrears of rent and were purchased by
Prasanna benami in the name of Swarnalata

The deed of gift shows that the transaction was entered into out of natural love and
affection of the donor for the donee and for the respect and reverence which the
grand-son bore to the grand-father. There is no direct evidence as to whether the
plaintiff was present in Bankura at the time when this deed was computed and
registered. It is the plaintiff's case that he was not. The suit was filed in 1952, more
than eight years after the date of the transaction and more than four years after the
death of Prasanna. There is a considerable body of evidence that in between 1944
and 1948 a number of settlements of different plots of land in village Lokepur had
been effected by Balaram acting as the natural guardian of his son Subhas Chandra
and in all of them the Nirupan Patra had been recited and in each case Prasanna
had signed as an attesting witness. These settlements were made jointly with the
other co-sharers of Prasanna. In 1947 the Municipal Commissioners of Bankura
filed a suit against Prasanna for recovery of arrears of taxes. Prasanna filed his
written statement any of the settlements of land in Lokepur after 1944. He admitted
never having paid any rent to the superior landlords and stated that he came to
know about the deed of settlement some two years before the institution of the suit
from his cousins none of whom were called as witnesses.
 ISSUES OF THE CASE

1. Whether the deed of gift was brought about by the undue influence?

2. Was the consent free at time of gifting the land ?

 INVOLVED SECTION OF INDIAN CONTRACT ACT

 Section 16 of INDIAN CONTRACT ACT 1872

UNDUE INFLUENCE

16.“Undue influence” defined 2.—(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.

2
THE INDIAN CONTRACT ACT, 1872 (SEC 16)
The word undue means unnecessary, unwarranted, or more than required.
Influence means convincing the mind of a counterparty through changing his mind
or changing his will, but this influence must be undue i.e it is not required. Undue
influence applies to a relationship which may be blood relation or some other kind
of relation i.e fiduciary or relation based on trust. It means the unfair use of one’s
superior position to obtain the consent of a person who is in a weak position. For
example, A police officer bought a property worth Rs 1 lakh for Rs 5000 from
Ram, an accused under his custody. Later this contract can be cancelled and it can
be held as void because there is a mental pressure on a person.
 ANALYSIS OF THE JUDGEMENT

Under Section 16 of the Indian Contract Act, the first thing to prove so
as to claim undue influence is the existence of such a relationship
between the parties that one is in a position to dominate the will of
the other. But mere relationship of such a nature will not raise any
presumption of undue influence; for it must be further proved that
thedefendant had used such a relation to obtain an unfair advantage
over the plaintiff

U/s 16(2) (a) 3 the phrase “real or apparent authority” can be taken to
mean “relations of the parties such that one naturally relied on the other
for advice and the latter was in a position to dominate the will of the
first in giving it”. The Court observed that no presumption of undue
influence arises in case of gift to a son, grandson, son-in-law, although
made during the donor’s illness or old age. Though, the relationship of
solicitor-client, spiritual advisor and devotee, doctor-patient, parent and
child are those in which such a presumption arises.
The statement filed by donor that “he no longer holds any interest in the
property” shows that he was fully conscious and consented the transfer
of property to the defendant. Further, the fact that donor was actively

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AIR 1967 SC 878/manupatra.com
involved in the management of his property clearly proves that no undue
influence was exercised over him.

LIST OF CASES REFERED

1. RAGHUNATH PRASAD v SARJU PRASAD

2. TAKRI DEVI v. RAMA DOGRA
 RAGHUNATH v SARJU PRASAD

Facts:

The defendant, Sarju Prasad Sahu and his father who was the plaintiff in this case,
Mr. Raghunath Prasad Sahu were equal owners of a massive joint family property.
They quarrelled and had fights over this property. Due to the same, the father
initiated criminal proceedings against his son. The defendant mortgaged his
properties to the plaintiff to defend himself and borrowed from the plaintiff about
ten thousand rupees at a compound interest of 24 per cent. In the course of eleven
years, the rate of interest on the amount borrowed magnified more than elevenfold,
viz., Rs/-1,12,885. The defendant’s contention was that the lender had taken
unconscionable advantage of his mental distress by exacting high rates of interest
and therefore, there should be presumption of undue influence i.e. Section 16 of
the Indian Contract Act, 1872.

Judgement:

The Lordships observed that no presumption of undue influence could be brought

out from this case. Lord Shaw referred to sub-section (3) of Section 16 and
observed as follows –

“In the first place the relations between the parties to each other must he such that
one is in a position to dominate the will of the other. Once that position is
substantiated the second stage has been reached, viz., the issue whether the
contract has been induced by undue influence. Upon the determination of this issue
a third point emerges, which is that of the onus probandi. 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. Error is almost sure to arise if
the order of these propositions be changed. The unconscionableness of the bargain
is not the first thing to be considered. The first thing to be considered is the
relations of these parties. Were they such as to put one in a position to dominate
the will of the other? Having this distinction and order in view the authorities
appear to their Lordships to be easily properly interpreted.”

TAKRI DEVI v. RAMA DOGRA

Facts: An illiterate old lady living separately from her husband gifted practically
all her property which included an apple orchard, valued at Rs. 2 Lacs to the
donee, who was her lawyer. There was no other relationship between the donor and
the done.

Judgment: It was held that there was fiduciary relationship between the two; the
donee was in a position to dominate the will of the donor, the transaction was
unconscionable and there was presumption of undue influence

.
 BIBLIOGRAPHY

WEBSITES

1.www. manupatra.com
2.www.lawtimesjournal.in

BOOKS

1.The Indian contact act 1872, bare act universal lexisnexis

2. Allahabad law agency law of contract I with special relief act
BANGIA RK ,