On 29th October, a bench of Delhi High Court consisting of Justice Jayant Nath, held that when a person is in a fiduciary relationship with another and the later is in a position of active confidence, the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position. Such a person has to prove that there was fair play in the transaction.

Facts of the case:

The plaintiff filed the present suit seeking partition of the suit property bearing No. 60, Ring Road, Lajpat Nagar III, New Delhi and possession after partition of the share of the plaintiff being one-half. A decree of declaration was also sought that the gift deeds dated 23.05.2007 and 02.06.2008 said to have been executed by Late Smt. Jaswant Kaur are null and void and are not binding on the plaintiff and consequently, cancellation of the said gift deeds. Other connected reliefs were also sought.

It is the case of the plaintiff that Late Smt. Jaswant Kaur executed her last Will and Testament whereby she bequeathed the suit property to the plaintiff and defendant No. 1 in equal shares. It is further stated apprehending that defendant No. 1 was playing mischief, the plaintiff caused searches to be made in the office of the local authorities and was shocked to learn that defendant No. 1 in connivance with defendant No.3 was trying to get the suit property mutated in their names by giving false representations to MCD. It was also learnt that defendants No. 1 and 3 had got executed and registered certain gift deeds allegedly from Smt.Jaswant Kaur pertaining to the suit property in favour of the said defendants No. 1 and 3 respectively.

Contention of the plaintiff:

The following contention has been submitted by the plaintiff:

  1. It was stated that Defendant No. 3 is not a legal heir of Late Smt. Jaswant Kaur, being a daughter-in-law and thus the effect of the gift deed is to deprive all the children of the inheritance of the mother, which is unusual.
  2. It was argued that although defendant No. 3 claims the gift deed to be executed in the drawing room of the suit property but is not supported by the RTI response received from the office of the Sub-Registrar which throws a doubt on the manner of registration of the said documents.
  3. It is further urged that both the attesting witnesses were the daughters of the donee-defendant No. 3 and are interested witnesses and the document the gift deed does not bear the signatures of the donor-Smt. Jaswant Kaur and only the finger prints carrying no evidence that it belongs to Smt. Jaswant Kaur.
  4. It is further urged that despite the alleged gift deed having been executed on 23.05.2007, no efforts were made by defendant No. 3 to get mutation of the property thereby indicating that the whole idea was to keep the gift deed a secret and to reveal it only after the demise of Smt. Jaswant kaur.
  5. It was submitted that the defendants failed to adhere to the best rule of evidence as the doctors mentioned as witnesses were never called as witnesses. Further the executing officials were not summoned.

Contention of the defendants:

The following contention has been submitted by the defendants:

  1. It was submitted that the plaintiff it is urged that if she was capable of signing the said certificate and issuing the same, she had the capacity to execute and register the gift deeds.
  2. It is further urged that the defendants have produced photographs and video clippings which have been admitted by the plaintiff in cross-examination where it is admitted that the mother-Smt.Jaswant Kaur used to attend functions and even sang in these functions.
  3. Merely because the registration was carried out at the residence does not imply or mean that Late Smt.Jaswant Kaur lacked mental capacity to execute the documents or was not of sound deposing mind. It is urged that presumption of genuineness and validity is attached to a registered document.
  4. It is further urged that much needless emphasis was made by the plaintiff that on the gift deed there are only the thumb impressions of the mother and not her signatures. It is urged that it was natural for the executant to put her thumb impressions in view of the large number of pages required to be executed.
  5. It is further urged by learned senior counsel for the defendant that the present suit is barred under Order 2 Rule 2 CPC and Order 13 Rule 1 CPC. It is only a case of astute drafting and hence, the suit is barred.

Observation and judgment of the court:

The following observation has been made by the hon’ble court:

  1. The legal position that follows is that when a fraud, misrepresentation or undue influence is alleged by a party in a suit, normally the burden is on them to prove such fraud, undue influence and misrepresentation.
  2. The onus to prove the validity of the gift deeds was cast upon the said defendants who were holding position of confidence/trust to show that the transaction was fair and reasonable and that no advantage had been taken of their position.
  3. It was observed that Late Smt. Jaswant Kaur did not understand English and being unaware of English language, she did not comprehend the contents of the documents or the nature of the documents.
  4. There is no explanation as to why the other legal heirs of Late Smt. Jaswant Kaur, namely, the plaintiff and defendant No. 2 were completely ousted from inheritance of the property by Late Smt. Jaswant Kaur.
  5. Where a party who is in possession of best evidence which would throw light on the issue in controversy withholds the same, an adverse inference can be drawn against such a party.
  6. The Will of Late Smt.Jaswant Kaur dated 05.01.1996 stands duly proved. As per the Will, the suit property devolves upon the two sons of Smt. Jaswant Kaur in two equal shares.

Based on the above, a decree of declaration was passed holding that the gift deeds dated 23.05.2007 and 02.06.2008 wee null and void and stood cancelled.

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