Decided on February 08,1900

JAI KISHEN DAS Respondents


Arthur Strachey, C J - (1.) This is an appeal from a decree passed in accordance with an award which was ordered to be filed under Section 526 of the Civil P. C.. Having regard to the construction which has been placed upon the last paragraph of Section 522, with which Section 526 must be read, the only ground upon which such an appeal will lie is that there has been no award in law or in fact on which a decree could legally be passed. The only grounds upon which the award was contested in the Court below and in this Court are--(1) that by reason of coercion or undue influence exercised on the mind of the appellant there was no valid submission to arbitration; and (2) that there was no award in the sense of a judicial determination by the arbitrators of the matters submitted, but the arbitrators merely accepted a settlement of those matters by other persons, and mechanically signed an award which was put before them for their signature.
(2.) Now as regards the first point, no question of coercion properly so-called arises in this case. Coercion is defined in Section 15 of the Indian Contract Act. It is clear that coercion as thus defined implies a committing or threatening to commit some act which is contrary to law. No such act is alleged to have been committed or threatened in the present case. Therefore coercion may be put out of the question altogether. The question of undue influence requires further consideration. We must apply the definition of undue influence contained in Section 16 of the Contract Act, as it stood before its amendment by Section 2 of Act No. VI of 1899. The only part of Section 16 which has been suggested as applicable here is the second clause, which provides that undue influence is said to be employed "when a person whose mind is enfeebled by old age, illness, or mental or bodily distress, is so treated as to make him consent to that to which, but for such treatment, he would not have consented, although such treatment may not amount to coercion." If the appellant's consent to the submission was caused by undue influence as thus defined, the contract was voidable at his option under Section 19. Now the circumstances under which the submission was entered into were these. There had been certain dealings between the appellant Gobardhan Das and one Gopal Das, the son of the plaintiff-respondent Jai Kishen Das. Gopal Das was a young man of twenty-two. The appellant was his cousin. It appears that the appellant got Gopal Das to execute a deed of sale of Gopal Das share in certain ancestral property. There were two deeds, one was taken in the name of Gobind Das, a relative of the appellant, and after that there was a further deed executed by Govind Das in the appellant's favour. On the 26 November 1896, a complaint was filed before a Magistrate by Gopal Das against Gobardhan Das, in which he charged the appellants with offences of criminal breach of trust and cheating under the Indian Penal Code in connection with the execution of the deeds, and on the following day, the 27th, the Court directed that the case should be sent to the police for investigation. While it was still under investigation the submission now in question was executed on the 4 December 1896. The submission is signed by Jai Kishen Das and the appellant Gobardhan Das. It recites a dispute between the executants; it states that "the parties are ready to have recourse to the Civil and Criminal Courts," and that therefore, at the request of some of the relatives of the parties, in order to settle the matter, they appoint certain persons as arbitrators, and declare that they will accept whatever award the arbitrators may honestly make with respect to the dispute relating to the sale deeds. On the next day, that is, the 5 December, the complainant Gopal Das presented an application to the Magistrate, in which, referring to his complaint, he stated that he could not adduce evidence in the case, and, as the police had not as yet taken any proceedings, he prayed that the case might be struck off and his original application returned without any further inquiry. The only order then made was that the application should be sent to the police. Matters remained in that position at the time when the award was made on the 24 December 1896, and ultimately, on the 7 January 1897, the Magistrate made an order to the effect that the complainant did not desire to proceed further with the case, and virtually shelving the complaint altogether. The award and the decree thereon were in the respondent's favour.
(3.) Now dealing first with the submission of the 4 December, we have to see whether there is sufficient evidence to justify the conclusion that the appellant's consent to it was obtained by undue influence employed for the purpose. Returning to Section 16, the question is--Does the evidence show that the appellant, while his mind was enfeebled by mental distress, was so treated as to make him consent to that to which but for such treatment he would not have consented? The appellant has given evidence himself as to the circumstances in which his consent was given. All he says on that point is this: "I executed the arbitration agreement, having been influenced by the criminal case. If I had not affixed my signature, those persons would have got me punished. It was through this fear that I executed the deed of agreement." That is all he says. I have no doubt that the reason why he executed the submission was his fear of the criminal proceedings. A complaint was pending which had been made only a few days before. The submission itself refers to criminal proceedings. Having regard to these facts and to the further circumstances of Gopal Das application practically abandoning the complaint on the very day after the execution of the submission, there can be no doubt that there was an implied agreement between the parties that if the appellant agreed to the submission the prosecution should be dropped, and that this, so far as the appellant was concerned, was the main object of the submission. As I have said, I have no doubt that at the time when he executed the submission he was to some extent, at all events, in fear of the criminal proceedings, but he does not say a word to suggest the conclusion that the plaintiff or anyone else took advantage of his state of mind to apply any pressure or exercise any influence to procure his consent. It cannot be held that a state of fear by itself constitutes undue influence. Assuming a state of fear amounting to mental distress which enfeebles the mind, there must further be action of some kind, the employment of pressure or influence by or on behalf of the other party to the agreement. In the case of Jones V/s. Merionethshire Building Society L.R. 1892 1 Ch. 173, Bowen, L.J., appeared inclined to the view that, given an agreement in consideration of a promise not to prosecute, it was a necessary or at least a reasonable inference of fact that undue influence or pressure must have been exercised and must have operated towards obtaining the agreement. See page 186 of the report. But the other Lords Justices concurred with Mr. Justice Vaughan Williams in the Court below in holding that there was practically no evidence of pressure or undue influence, although undoubtedly there was fear and undoubtedly an agreement not to prosecute. In India we must apply the definition of undue influence contained in the Contract Act, Section 16, and taking the statements of the appellant as they stand, it appears to me that there is no sufficient evidence of the facts required by the second Clause of that section. That disposes of the objection to the award so far as the submission is concerned.;

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