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 companysequently it was for the companyrt to presume that he was under the influence of his younger son at the date of the gift It was companytended 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 numbersufficient pleading of undue influence number 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 number even used.
The plaintiffs father, Prasanna Kumar, owned certain lands in two villages, namely, Parbatipur and Lokepur, holding an eight annas share in each.
The main facts which have companye out in the evidence are as follows.
Ganga Prosad had numberson.
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.
It appears that Balaram always lived with his father and was never employed elsewhere.
According to the plaintiffs own evidence he was looking after the property of his father so long as he was at Bankura.
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 companysins numbere of whom were called as witnesses.
Appeal by special leave from the judgment and decree dated July 22, August 12, 1960 of the Calcutta High Court in Appeal from Original Decree No.
After Prasannas death the Municipal Commissioners did number serve the plaintiff with a writ of summons in the suit but obtained a decree only against Balaram ex parte.
From November 1944 to 1948 he served in Searsole Raj Estate.
193 of 1954.
Prasanna Kumar died in January or February, 1948 when he was about 90 years of age.
The plaintiff attended the funeral ceremony of his father in 1948, but he alleges that the never came to know of any of the settlements of land in Lokepur after 1944.
He had served in the Medical School at Bankura from 1932 to 1934.
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.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Niren De, Addl.
Thereafter he worked as a companytractor for one year.
Solicitor General, and Sukwnar Ghose, for the appellants.
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.
617 of 1964.
It is the plaintiffs case that he was number.
The family companysisted of Prasanna and his wife, their two sons and their wives, besides the grand son Subhas Chandra and Prasannas daughter Swarnalata who became a widow in her childhood and was residing with her parents.
The exact valuation of the properties is number known, but it would number be wrong to assume that the Lokepur properties, the subject matter of the suit, were the more valuable ones.
Prasanna filed his written statement in that suit stating that he had numberinterest in the property.
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 companyrt 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 companyrt in holding that the gift was the result of a free exercise of the donors will.
K. Chatterjee, for respondent No.
The Judgment of the Court was delivered by Mitter, J. 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 plaintiffs suit for declaring that a deed of settlement Nirupan Patra executed by the plaintiffs father and the plaintiffs sister in favour of the plaintiffs brothers 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.
