Free consent continued.

Concept of undue influence 

There are some instances wherein one person is so placed to the other that he can dominate the will of the other. Such an advantage over the other is used to get the other to enter into a contract. In this case the consent is said to be obtained through undue influence. 

The two important points to be noted are close relationship with the person and domination of will . 

eg: A advances a sum to his minor son B. As B attains majority, using parental influence A obtains a bond from B for a greater amount. This is undue influence. 

A man suffering from a disease is looked after by X. Here X obtains a very large sum from that man for the treatment. This is undue influence. 

Eg of persons having a dominant-weak character :

Income tax officer- assesee

Moneylender-person in debt

Policeman-accused

master- servant

Burden of proof:

The burden of proof lies on the person who is in a position to dominate the will of the other.

If it appears on the face of it that the contract was entered into using undue influence it is the person who is in a dominating position to prove that undue influence was not used. 

Presumption :

It is always presumed that one of the parties was in a position to dominate will of the other and such position was used to obtain an unfair advantage.

Case law - Subhash chandra das vs Ganga prasad das

A who was very old had two sons and one grandson. A during his life time gave a gift to his grandson .He had excluded his two sons from the gift deed. Upon A's death(after 4 years) his two sons challenged the gift saying that it was obtained using undue influence. The supreme court said in the judgment that no presumption of undue influence could arise here and a grandfather making a gift to his grandson on account of love and affection is not on the face of it unconscionable. 

Case law - Wajid Khan vs Raja ewaz ali khan 

An old woman was incapable of managing her business. She appointed a managing agent. She conferred on her managing agent without any valuable consideration an important pecuniary benefit in the form of a trust. It was held this was active undue influence.