What are the Rules Relating to Appropriation? The Rules relating to the appropriation of payments made by a debtor, who owes a number of distinct debts to his creditor are contained in Sections 59 to 61 of the Indian Contract Act,
When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. Thus, the Evidence Act has clearly laid down that the burden of proving fact always lies upon the person who asserts. Until such burden is discharged, the other party is not required to be called upon to prove his case.
The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party. AIR SC This was held in the case of Roop Narain vs.
Gangadhar, 9 WRas also in Anna Malay vs. Na U Ma, 17C In Thiruvengada Pillai v. The first appellate Court proceeded on the basis that Raghunath prasad case essay is for the party who asserts something to prove that thing; and as the defendants alleged that the agreement was forged, it was for them to prove it.
But the first appellate Court lost sight of the fact that the party who propounds the document will have to prove it. It was the plaintiff who had come to Court alleging that the first defendant had executed an agreement of sale in his favour.
The defendant having denied it, the burden was on the plaintiff to prove that the defendant had executed the agreement and not on the defendant to prove the negative. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court.
In such a case, the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator.
AIR SCit was held "that when fraud, mis- representation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words that the transaction is genuine and bona fide.
In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence.
In Ladli Prashad Jaiswal v. The Karnal Distillery Co. The doctrine applies to acts of bounty as well as to other transactions in which one party by exercising his position of dominance obtains an unfair advantage over another.
The Indian enactment is founded substantially on the rules of English common law. The first sub-section of S. By sub-section 2 a presumption arises that a person shall be deemed to be in a position to dominate the will of another if the conditions set out therein are fulfilled.
Sub-section 3 lays down the conditions for raising a rebuttable presumption that a transaction is procured by the exercise of undue influence. The reason for the rule in the third sub-section is that a person who has obtained an advantage over another by dominating his will may also remain in a position to suppress the requisite evidence in support of the plea of undue influence.
Upon the determination of these two issues a third point emerges, which is that of the onus probandi.
If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence lies upon the person who is in a position to dominate the Will of the other. It was further said that merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise.
Generally speaking the relations of solicitor and client, trustee and cestui que trust, spiritual adviser and devotee, medical attendant and patient, parent and child are those in which such a presumption arises.
Sub-section 3 of Section 16 contains a rule of evidence. According to this rule, if a person seeking to avoid a transaction on the ground of undue influence proves- a that the party who had obtained the benefit was, at the material time, in a position to dominate the will of the other conferring the benefit, and b that the transaction is unconscionable, the burden shifts on the party benefiting by the transaction to show that it was not induced by undue influence.
If either of these two conditions is not established the burden will not shift. As shall be discussed presently, in the instant case the first condition had not been established; and consequently, the burden never shifted on the defendant.
The Privy Council in Raghunath Prasad v. It was pointed out that the first thing to be considered is, whether the plaintiff or the party seeking relief on the ground of undue influence has proved that the relations between the parties to each other are such that one is in a position to dominate the will of the other.
Once that position is substantiated, the second stage has been reached - namely, the issue whether the transaction has been induced by undue influence. That is to say, it is not sufficient for the person seeking the relief to show that the relations of the parties have been such that the one naturally relied upon the other for advice, and the other was in a position to dominate the will of the first in giving it.The only case which the appellant has is the case derived from the contents of the mortgage itself.
It is argued with force that these are unconscionable, and that it is the duty of the Court in India to step in either to rescind the contract or to rectify the bargain.
Raghunath P. Misra Shreveport, LA - Dr. Raghunath Prasad Misra died peacefully of natural causes at WK Pierremont Health Center in Shreveport, Louisiana, on June 20, Dr. Misra was a devoted. The fact of Raghunath Prasad v. Sarju Prasad AIR Defendant gave no proof and no court can accept story that do not had proof by author to establish a case either of undue influence or of mental distress under Contract Act.
The High Court allowed compound interest on principal at 2%. In Raghunath Prasad v Sarju Prasad [Father and son are equal owners of a vast joint family r-bridal.com have quarrelled over r-bridal.com instituted criminal proceedings against the son. In order to defend himself, the son borrowed money from the father at 24% compound interest and mortgaged his properties.
Raghunath Vs. Sarju Prasad – Father and son equal owners of a vast joint family property – both quarrelled over it – Father instituted criminal proceedings against the son – In order to defend himself, the son borrowed money from the plaintiff at 24% compound interest and mortgaged his properties – In eleven years, the amount payable magnified more .
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