Hon'ble Judges/Coram:
G.K. Mitter, J.M. Shelat and K.N. Wanchoo JUDGMENT
G.K. Mitter, J.
1. This is an appeal from a judgment and 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. The Judges of the High Court proceeded on the basis that in the circumstances of the case and in view of the relationship of the parties the trial court should have made a presumption that the donee had influence over the donor and should have asked for proof from the respondents before the High Court that the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which would justify the court in holding that the gift was the result of a free exercise of the donor's will. The High Court went on to presume from the great age of the donor that his intelligence or understanding must have deteriorated with advancing years and consequently it was for the court to presume that he was under the influence of his younger son at the date of the gift. It was contended before us by the learned Additional Solicitor-General appearing for the appellant that the judgment of the High Court had proceeded on an entirely erroneous basis and that there was no sufficient pleading of undue influence nor was there any evidence adduced at the trial to make out a case of undue influence and in the vital issue raised before the learned Subordinate Judge the expression "undue influence" was not even used.
2. The main facts which have come out in the evidence are as follows. The plaintiff's father, Prasanna Kumar, owned certain lands in two villages, namely, Parbatipur and Lokepur, holding an eight annas share in each. The exact valuation of the properties is not known, but it would not be wrong to assume that the Lokepur properties, the subject-matter of the suit, were the more valuable ones. Prasanna Kumar died in January or February, 1948 when he was about 90 years of age. 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........