MEMORANDUM ON BEHALF OF THE RESPONDENT

IN THE HONBLE
HIGH COURT OF BOMBAY

CASE REGARDING
CONTRACTS

SHRIMATI AND OTHERS

(APPELLANT)
V.
SUDHAKAR AND R.BHATKAR AND OTHERS
(RESPONDENT)

MEMORANDUM ON BEHALF OF THE RESPONDENT

COUNSEL ON BEHALF OF THE RESPONDENT
ROHANNADIMPALLY

MEMORANDUM ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS

LIST OF ABBREVIATIONS

TABLE OF AUTHORITIES

iii

1. CASES iii
2. BOOKS iii
3. STATUTES

iii

STATEMENT OF FACTS iv
ISSUES RAISED

SUMMARY OF ARGUMENTS

WRITTEN SUBMISSIONS2
4. (1) THE ORIGINAL DEFENDANT WAS IN NO POSITION TO EXECUTE UNDUE
INFLUENCE OVER THE ORIGINAL PLAINTIFF
2
5. (2) THE DEFENDANT DID NOT OBTAIN THE SIGNATURE ON THE GIFT DEED
BY EXERTION OF
FRAUD.............................................................................................................
....3

PRAYER FOR RELIEF

MEMORANDUM ON BEHALF OF THE RESPONDENT

LIST OF ABBREVIATIONS
AC
AIR
Ed.
SCC
vs.
WLR
C.J

Appeal Cases
All India Reporter
Edition
Supreme Court Cases
Versus
Weekly Law Reports
Chief Justice

MEMORANDUM ON BEHALF OF THE RESPONDENT

TABLE OF AUTHORITIES

CASES
1. Mannu Singh v UmadatPandey
2. Ashok Kumar Patil v New India Assurance Co
3. Subhas Chandra Das v Ganga Prasad Das
4. RaghumathPd v Sarju Prasad
5. Maria EudariaApoloniaGonsalves v Shripad Vishnu KamatTarcar
6. AfsarShaikh v SolemanBibi
7. ChikkamAmmiraju and Ors V ChikkamSeshamma and Ors
8. Bellachi V Pakeeran

BOOKS
1. Contract and Special Relief by Avtar Singh
2. Indian Contract Act, 1872 Bare Act by Universals Publishing
3. All India Reporter

STATUTES
1. Indian Contract Act, 1872

MEMORANDUM ON BEHALF OF THE RESPONDENT

STATEMENT OF FACTS
MotiramMugadum was owner of the suit of properties. MotiramMugadum died leaving
his wife ShrimatiMotiramSakharamMugadum(original plaintiff) became the owner and
was in possession and enjoyment of the aforesaid properties. A part of the house property
was let out the village panchayat. ShriSudhakarRaghunathBhatkar was the secretary and
Gram Sevak of the village panchayat. The original defendant was residing in the premises
owned by the original plaintiff and taken on rent by the village panchayat from her. The
original defendant and the original plaintiff are not related but are well acquainted.
According to the plaintiff the original defendant took the original plaintiff on confidence
and took her to a place on a certain pretext but later on she came to know that the original
defendant had got the gift deed executed from her realting to entire property held by her.
The original plaintiff, according to her, came to know in the month of July 1976 that
original defendant had mortgaged the property to Ratnagiri District Land Developmental
Bank. On 8-3-1977, the original plaintiff accordingly filed a suit in the Court of the Civil
Judge, Junior Division, Rajapur against the original defendant and the others namely,
Maharashtra State Co-operative Land Developmental Bank with whom the properties
were mortgaged praying therein that the gift deed dates 15-12-1966 allegedly executed in
favour defendant 1 be treated as cancelled and it be declared that defendant 1 had got no
right in the said properties pursuant to the said gift deed. The original plaintiff also sought
the relief that it be declared that the original defendant had no right to mortgage the
property and the said property was not liable for auction. The original defendant filed a
written statement denying all averments. According to the original defendant the original
plaintiff had signed the gift deed out of love and affection. He also put forward the
defence that he had made improvements to the suit house using his own income. The Trial
Court after hearing the learned Counsel for the parties held that the original plaintiff had
failed to prove that the original defendant had got the registered gift deed executed in his
favour by fraud. The Trial Court dismissed the suit which has been affirmed in appeal.

ISSUES RAISED
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MEMORANDUM ON BEHALF OF THE RESPONDENT

1. Whether the original defendant was in a position to execute undue influence over the
original plaintiff.
2. Whether the original defendant ,being in a position to exert undue influence, obtained
the signature on the gift deed by fraud or exertion of undue influence.

MEMORANDUM ON BEHALF OF THE RESPONDENT

SUMMARY OF ARGUMENTS
1. The original defendant was in no position to influence the original plaintiff as merely
residing in the plaintiffs premises does not put the respondent in a position to
influence the plaintiff.
2. The original defendant did not exert any kind of undue influence over the original
plaintiff. Persuasion cannot be regarded as influence. In the eyes of law, influence
must be contradistinguished with persuasion
.

MEMORANDUM ON BEHALF OF THE RESPONDENT

WRITTEN SUBMISSIONS
(1) THE ORIGINAL DEFENDANT WAS IN NO POSITION TO EXECUTE
UNDUE INFLUENCE OVER THE ORIGINAL PLAINTIFF.
According to Section 2(h)of the Indian Contract Act, 1872Any agreement enforceable by law is a contract.1
Section 16 of the Indian Contracts Act, 1872 defines undue influence.
(1) A contract is said to be induced by undue influence where the relations
subsisting between 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
evidence adduced, to be unconscionable, the burden of proving that such
contact was not induced by undue influence shall lie upon the person in a
position to dominate the will of the other.2
Sometimes the parties to an agreement are so related to each other that one of
them is able to dominate the will of the other. The person who occupies the
superior position may prevail upon the other to obtain his consent to an
agreement to which he, but for the influence exerted, would not have
consented. For example,
A, a man enfeebled by disease or age, is induced by Bs influence over him as
his medical attendant to agree to pay B an unreasonable sum for his
professional services. B employs undue influence.
In the case of Mannu Singh v UmadatPandey3, a spiritual advisor, induced
the plaintiff to gift to him the whole of his property to secure benefits to his
1Indian Contract,1872, S.2(h)
2Indian Contract Act 1872, S.16
3(1890) 12 All 523
2

MEMORANDUM ON BEHALF OF THE RESPONDENT

soul in the next world.Such consent was said to have been obtained by undue
influence. Would any reasonable man, the court said, in full possession and
not under unusual influence do such a thing?
In the case of Ashok Kumar Patil v New India Assurance Co.4, the insured
was forced and pressurized to consent to exclusion of cover for cardiac
ailments. It was held that consent being not lawful, it had no binding effect.
There are instances where it may appear that there is a relation between two
people entering into a contract but in reality there may be no such relation. For
a person to be in a position of domination over another, the persons must be in
a fiduciary relationship at least. A fiduciary relationship is any relationship
based on trust and confidence as decided by the Supreme Court in Subhas
Chandra Das v Ganga Prasad Das5. In another kind of example,
A applies to a banker for a loan at a time when there is stringency in the
money market. The banker declines to make the loan except at an unusually
high rate of interest. A accepts the loan on these terms. This is a transaction in
the ordinary course of business, and the contract is not induced by undue
influence. The Court ruled that before it could call upon to examine whether
undue influence was exercised, it must scrutinize the pleadings to find out that
such a case had been made out and that full particulars of undue influence had
been given in case of fraud. However, these conditions remained unsatisfied in
the instant case and hence the appeal was dismissed.
The fact that in order to dominate the will of another, a person must be in a
position of advantage or in a position to be able to dominate the will of
another was pointed out in RaghumathPd v Sarju Prasad6.
In this case, the defendant and his father were equal owners of a vast joint
family property over which they had quarrelled. Consequently the father had
instituted criminal proceedings against his son. The defendant, in order to
defend himself, mortgaged the properties to the plaintiff and borrowed from
him ten thousand rupees at 24% compound interest. In eleven years the
amount payable by the defendant to the plaintiff was one lakh twelve thousand
eight hundred and eighty five rupees. The defendant contended that the lender
4AIR 2007 Del136
5AIR 1967 SC 878
6 AIR 1924 PC 60
3

MEMORANDUM ON BEHALF OF THE RESPONDENT

had, by exacting high rate of interest, taken unconscionable advantage of his
mental distress and therefore there should be presumption of undue influence.
The courts however held that the suit was in violation of Section 16(3) of the
Indian Contracts Act, 1872 since the money lender had no real or apparent
authority over the son and he did not even share any form of a fiduciary
relationship with him. Hence, the court held the suit dismissed.
Also, in the case of Maria EudariaApoloniaGonsalves v Shripad Vishnu
KamatTarcar7, the court held that there was no case of undue influence as the
accused party was in no position to dominate the other party and hence the
case of undue influence does not arise.
Similarily, in the case at hand, the original defendant was in no position to
exert any kind of domination in order to influence the signing of the gift deed.
By merely residing as tenant in the plaintiffs premises, the defendant does not
come into a position to influence the plaintiff. Even mere persuasion which
may have occurred will not be regarded the same as influence.
The Supreme Court in AfsarShaikh v SolemanBibi8held that it was not
sufficient for a person seeking relief to show that the relations between the two
have been such that one generally relied on the other for advice. It must be
proved that the one in question could exert actual and real authority.
(2) THE ORIGINAL DEFENDANT DID NOT OBTAIN THE SIGNATURE
ON THE GIFT DEED BY FRAUD OR EXERTION OF UNDUE
INFLUENCE.
As given in the previous submission, the original defendant was in position of
real or apparent authority and was also not involved in any form of fiduciary
relationship with the original plaintiff and hence the question of undue
influence does not arise.
If the question of persuasion arises, in the eyes of the law, influence must be
contradistinguished with persuasion. Any and every persuasion by one party
cannot lead to the inference or conclusion that such party has influenced the
other party.
One may by his act and conduct convince and persuade the other party to do a
certain act and if the other party does such an act freely and of own volition
7AIR 1998 Bom 46
8AIR 1976 SC 163
4

MEMORANDUM ON BEHALF OF THE RESPONDENT

may be to his or her prejudice or to his or her disadvantage or to his or her
own peril, it cannot be said that such act was influenced by another.
Therefore, since the original plaintiff and the original defendant were living in
one house and the original defendant was being treated like a son, might have
persuaded the original plaintiff to give her entire property. By such persuasion,
it cannot be held that he has influenced such decision of the original plaintiff
by dominating his will over her.
The question of whether such influence was undue or not, thus, cannot have
arisen as the said case does not produce any reliable evidence at all but is also
not probable.
According to the statement made in the gift deed itself, she had gifted the
property out of pure love and affection.
In the case of ChikkamAmmiraju and Ors V ChikkamSeshamma and
Ors9, the Madras High Court held that any persuasion even if proved, cannot
invalidate a document". In this case the defendant had threatened to commit
suicide if the plaintiff did not execute the deed.
In the case of Bellachi V Pakeeran10, the court held that any presumption of
undue influence will not be raised by the court and any case of undue
influence will have to be proven by the person alleging it.
It can be clearly seen from the above facts and stated instances that the
respondent was in no position to dominate the will of the plaintiff and still did
no attempt to influence her will in any manner. There might have been
successful persuasion but our law clearly states that undue influence is not the
same as persuasion as successful persuasion will not render a contract void.

PRAYER FOR RELIEF

Wherefore, in the light of the issues raised, arguments advanced and authorities cited, the
respondents humbly pray that the High Court of Bombaybe pleased to adjudge and declare:
1. The original defendant was in no position to influence or dominate the original
plaintiff in the signing of the gift deed.
2. The original defendant did not obtain the signature of the plaintiff through fraud
or undue influence.

9AIR1918Mad414
10AIR2009SC3298
5

MEMORANDUM ON BEHALF OF THE RESPONDENT

Pass any other order or make any direction as the court nay deem fit to meet the interest of
justice, equity and good conscience.
All of which is most humbly submitted before the Honble Court.

Counsel for Respondent

RohanNadimpally

Place: Bombay
Date: 4 March 1997