ALLCARD V SKINNER: WHETHER THE ONUS OF PROOF SHIFTS IN PRESUMED UNDUE INFLUENCE?

THE VIABILITY OF THE SHIFT

AND THE COMPARISON WITH INDIAN LAW

CONTRACTS I

ALLCARD V SKINNER: WHETHER THE ONUS OF PROOF SHIFTS IN

PRESUMED UNDUE INFLUENCE? THE VIABILITY OF THE SHIFT AND
COMPARISON WITH INDIAN LAW

Submitted By

Harshit Goyal

ID No.: 2375

Batch: 2017-22 (BA LLB)

National Law School of India University

Bengaluru

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ALLCARD V SKINNER: WHETHER THE ONUS OF PROOF SHIFTS IN PRESUMED UNDUE INFLUENCE? THE VIABILITY OF THE SHIFT
AND THE COMPARISON WITH INDIAN LAW

TABLE OF CONTENTS

Table of Contents ....................................................................................................................... 2

Introduction ................................................................................................................................ 3

Part I: Allcard v. Skinner and The Concept of Undue Influence ............................................... 4

Concept .................................................................................................................................. 4

The Shift of Onus to proof ..................................................................................................... 5

Part II: The Analysis .................................................................................................................. 8

Viability of the shift ............................................................................................................... 8

The Law of Limitation and Comparison with Indian scenario .............................................. 8

Conclusion ............................................................................................................................... 11

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ALLCARD V SKINNER: WHETHER THE ONUS OF PROOF SHIFTS IN PRESUMED UNDUE INFLUENCE? THE VIABILITY OF THE SHIFT
AND THE COMPARISON WITH INDIAN LAW

INTRODUCTION

Every agreement becomes legally binding only when the consent given for the terms and
obligations of the agreement is free.1 The consent is not free when it is given under the factors
like mistake, fraud etc.2 One such factor is undue influence.3 The consent is said to be affected
by undue influence when one party dominates and influences the will of the consenting party
so that he consents to such a thing for which he normally would not have consented.4

If the transaction is conspicuously affected by the undue influence the onus to prove it
otherwise lies on the person who was in the capacity of dominating the will.5 But if the
unfairness doesn’t appear on the face of it then the onus of proof is re-shifted to the party
relying on such plea.

But what is the reason behind such a shift? Is this reason contradictory to any proposition of
law? If the provision of law relies only on influence, then it would imply that all the MBA
institutes teaching marketing skills to students are breeding criminals. Therefore, another
pertinent question is that how strong must be the influence to enable the court to apply the
section of undue influence? Why there should be a provision against undue influence in law
books? Comparing the position of law defined in Allcard v. Sinker with Indian scenario, is
there any difference?

To answer all of these questions, I have divided my research paper into two parts. First part is
mostly descriptive which deals with the analysis of the landmark case Allcard v. Sinker and
some other case laws to understand the concept of undue influence. The second part is then an
analytical part which critically analyses the viability of the shift in onus to prove. It also
compares the position of law demarcated in Allcard v. Sinker with Indian situation.

1
Sec. 10, Indian Contract Act, 1872
2
Sec. 14, Indian Contract Act, 1872
3
Id.
4
Sec. 16, Indian Contract Act, 1872
5
Id.
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ALLCARD V SKINNER: WHETHER THE ONUS OF PROOF SHIFTS IN PRESUMED UNDUE INFLUENCE? THE VIABILITY OF THE SHIFT
AND THE COMPARISON WITH INDIAN LAW

PART I: ALLCARD V. SKINNER AND THE CONCEPT OF UNDUE INFLUENCE

The facts of the case Allcard v. Skinner6 are:

Mr Nihil introduced Ms Allcard to Ms Skinner, head of religious organisation Protestant Sisters

for the Poor, which was an association of ladies who devoted themselves to charitable works.
Ms Allcard upgraded in the rank and took the vow of obedience and poverty. The vow of
poverty required one to bequeath all of the property. Though it was allowed that property can
either be given to the relatives, poor or to the sisterhood itself, the rules in the schedule were
more favourable for the bequeath to the sisterhood. She, therefore, transferred the property to
Ms Skinner. Five years later, Ms Allcard left the organisation and later filed a claim for setting
aside the contract as being signed under undue influence. The court said that the contract was
made under the influence of Ms Sinker. But she was not allowed the claim since she filed the
case after a huge delay.

This case in this part will teach two things: One regarding the concept of undue influence in
the form that what this concept of undue influence actually means and second regarding the
onus of proof.

Concept
An important question that arises is regarding the degree of this influence. Eminent
psychologist Jim Sidanius has given a social dominance theory as per which every human mind
lives under some influence or other all the time. But some influences reach the sub-conscious
mind so intensely that they can change the judgement capacity of individuals. These influences
can be either because of the fear, awe, trust etc. which is emanated from the personality of the
influencer or they can be because of the self-undermining by the one who is influenced.7 The
lawmaker who drafted the section 16 of the Indian contracts act attempted to define such
influences by listing down the two kinds of relationships:

 Real or apparent authority: Relationships can be because of real authority like that
between employer and employee, police officer and accused and it can be an apparent

6
Allcard v. Sinker (1887) 36 Ch D 145 (Court of Appeal)
7
Jim Sidanius, SOCIAL DOMINANCE: AN INTERGROUP THEORY OF SOCIAL HIERARCHY AND OPPRESSION, 133
(February, 2001)
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ALLCARD V SKINNER: WHETHER THE ONUS OF PROOF SHIFTS IN PRESUMED UNDUE INFLUENCE? THE VIABILITY OF THE SHIFT
AND THE COMPARISON WITH INDIAN LAW

authority which arises when someone reasonably believes a person has the authority
though there is no authority present in reality.
 Fiduciary relationships: These relationships are based on the trust between the parties8
and thus the influence is emanated from the confidence which the party has on
influencer.9 This general definition is narrowed by various case laws like Takri Devi v.
Rama Dogra10 in which it was held that the relationship of a lawyer and a client is a
fiduciary relationship and Tapan Ranjan Das v. Jolly Das11 in which the relationship
of teacher and student was classified in a similar manner.

These categories are used by both Indian and English courts to presume undue influence. For
example: In the present case in hand, the gift from Ms Allcard to Ms Sinker was also based on
fiduciary relationship. In Indian cases also, this principle was followed and in a case in which
plaintiff donated all his property to his spiritual advisor, the consent was held to limited by
undue influence because of the fiduciary relationship between them.12

Why is there a need to prevent undue influence? The answer to this question lies in the principle
on which law of contracts is based, i.e. to prevent the exploitation of any party due to inequality
in bargaining power. Also, the consent is a basic building block of any contract. It is imperative
that it is freely given without any external tempering. Thus, all those influences which change
the will and judgment of consenting party must be taken care of by law.

The Shift of Onus to proof

Section 16 of Indian Contract Act 1872 clearly says that if the transaction is conspicuously
affected by undue influence or the plaintiff proves that there was an undue influence, the onus
of proof will be shifted to the defendant to prove it otherwise.

But what are the elements on the basis of which court will conclude that the contract was
limited by undue influence?

The elements which the court will look for are:

8
Sant Bux Singh v. Ali Raza Khan (1946) AIR 1946 Oudh 129 (High Court of Allahbad)
9
Ram Kalap Pande v. Bansidhar (1947) AIR 1947 Oudh 89 (High court of Allahbad)
10
Takri Devi v. Rama Dogra (1984) AIR 1984 HP 11 (High Court of Himachal Pradesh)
11
Tapan Ranjan Das v. Jolly Das (1990) AIR 1990 Cal 353 (Court of Calcutta)
12
Manbhari v. Sri Ram (1936) AIR 1936 All 672 (High court of Allahbad)
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ALLCARD V SKINNER: WHETHER THE ONUS OF PROOF SHIFTS IN PRESUMED UNDUE INFLUENCE? THE VIABILITY OF THE SHIFT
AND THE COMPARISON WITH INDIAN LAW

a) Any relationship between parties in which a person was in a position to dominate the
will of another party13
b) The usage of such a position to extract an unfair advantage for oneself14

The presence of both of these elements is necessary to label the consent as given under undue
influence.15

The position gets a bit more specific in English law. Undue influence in English law is divided
into Actual Undue Influence (Class 1) and Presumed undue influence (Class 2). 16 In Actual
undue influence type, the plaintiff needs to show that there was an undue influence which was
exercised. Just establishment of this fact would enable one to get the desired claim and there is
no need to show any unfair advantage extracted by the influencer. For example in CIBC
Mortgages plc v. Pitt17, the husband exercised his influence and pressure and made his wife
sign the contract without letting her read the terms. Proving this undue influence was sufficient,
even if the contract would have proved later to be beneficial.

In the class 2 kind of undue influence i.e. presumed undue influence the court on the basis of
the confidential or fiduciary relationship between the parties, presumes that there was some
influence. But up to this point, it is an only influence and not undue influence.18 To prove it as
undue influence, it is also necessary to show that there was some unreasonable loss to the
consenting party or some unreasonable advantage to the influencer.

It is this class in which the case Allcard v. Sinker19 lies. In this case, judge Lindley LJ pointed
out that a small gift made to a person falling within one of the relationships presumed to
emanate influence would not be enough in itself to put the transaction aside. He or she needs
to prove that the transaction was actually unfair and involved such a sacrifice which can’t be
reasonably accounted for the fiduciary relationship between them. This view was carried
further in National Westminster Bank v. Morgan20 in which even when the relationship
between the bank manager and plaintiff was presumed to be as such where bank manager can

13
Mahmud-un-Nissa v. Barkatulla (1926) AIR 1927 All 44 (High court of Allahbad)
14
Vinayakappa Suryabhanappa Dahenkar v. Dulichand Hariram Murarka (1986) AIR 1986 Bom 193 (High court
of Bombay)
15
Karnal Distillery Co. Ltd. V. Ladli Prasad Jaiswal (1958) AIR 1958 Punj 190 (High Court of Punjab)
16
Barclays Bank plc v. O’Brein (1994) 1 AC 180 (House of Lords)
17
CIBC Mortgages plc v. Pitt (1994) 1 AC 200 (Court of Appeals)
18
Royal Bank of Scotland v. Etridge (No 2) (1998) 4 All ER 705 (House of Lords)
19
Supra note 7, at 181
20
National Westminster Bank v. Morgan (1985) 1 All ER 821 (House of Lords)
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ALLCARD V SKINNER: WHETHER THE ONUS OF PROOF SHIFTS IN PRESUMED UNDUE INFLUENCE? THE VIABILITY OF THE SHIFT
AND THE COMPARISON WITH INDIAN LAW

influence the decision, lack of any manifest disadvantage for the plaintiff barred her from
getting any claim. An important point to note is that in such cases, the onus to prove the
unfairness of transaction21 lies on the party relying on such plea.

To make it more clear, the court doesn’t want that consideration from one party should be very
large to set aside the contract. To limit the contract because of the reason of undue influence,
the court just needs to confirm that the consent was not free. In case of actual undue influence
or class 1 type undue influence, this is directly proved. But in presumed undue influence or
class 2 type of undue influence, the facts that one relationship was such that and two the
transaction is also unfair, jointly confirm that the will of the consenting party was altered. The
first of this fact is presumed by the court, and the latter one is proved by the plaintiff if it is not
conspicuous.

Thus the question that whether or not an onus of proof is shifted in cases of presumed undue
influence, is answered in affirmative on the basis of observations made by judges in the case
Allcard v. Sinker.22 The onus to prove the unfairness of transaction does lie on the plaintiff in
case the same is not conspicuous.

21
Earlier the requirement was to prove that the transaction was manifestly disadvantageous to the consenting
party. But this term was altered by the case Royal Bank of Scotland v. Etridge (No 2) (1998) 4 All ER 705 (House
of Lords)
22
Supra note 7
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ALLCARD V SKINNER: WHETHER THE ONUS OF PROOF SHIFTS IN PRESUMED UNDUE INFLUENCE? THE VIABILITY OF THE SHIFT
AND THE COMPARISON WITH INDIAN LAW

PART II: THE ANALYSIS

As noted earlier, in the cases of presumed undue influence, the plaintiff needs to prove the
unfairness of the transaction in case it is not conspicuous enough. This stand is common for
both the Indian as well as English law.

Viability of the shift

One of the biggest advantages of this proposition of law is that it makes the trial fair. The one
who says that he or she was unduly influenced, is in the better position to show it to the court
of law if it doesn’t appear on the face of it. Plaintiff would be in a better position to tell as to
with what actions or statements of the defendant his mind and judgment was influenced and as
to how the loss is unfair to him. The Indian Contract Act also goes in a distinction with section
111 of Indian Evidence Act and makes it the obligation of the plaintiff to prove the unfairness.23
Even if when the onus is shifted to the defendants, it is only when the unfairness is conspicuous
i.e. the part of the plaintiff has already been proven.

This principle is misinterpreted by certain case laws like Sher Singh v. Prithi Singh 24 and Ladli
Parshad Jaiswal v. Karnal Distillery Co. Ltd.25. In these cases, it was said that plaintiff
shouldn’t have the obligation to prove because he being of weak intellect and under influence
of defendant will not be able to present the evidence. But what the honourable judges failed to
notice was that the very fact that the plaintiff is bringing the case to the court means that he has
realised that something was wrong with the transaction and thus the influence which was
exercised over him has been faded away. It would be just and fair to ask him only as to what
he has realised and what part of the transaction is unfair to him.

The Law of Limitation and Comparison with Indian scenario

In the case, Allcard v. Sinker26, the Court of Appeal by a majority held that when she left the
sisterhood in 1879 she was entitled to the return of her property on grounds of undue influence.
But the delay in bringing the proceedings until 1885 was unreasonable. This was especially
bearing in mind that in 1880 her brother and her solicitor had told her that she might have a
potential claim against the sisterhood. She, however, made a conscious decision to accept the
validity of the gifts when free of the sisterhood influence although she had the choice to bring

23
Supra note 4
24
Sher Singh v. Prithi Singh (1975) AIR 1975 All 259 (High Court of Allahbad)
25
Ladli Parshad Jaiswal v. Karnal Distillery Co. Ltd. (1964) AIR 1963 SC 1279 (Supreme Court of India)
26
Supra note 6
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ALLCARD V SKINNER: WHETHER THE ONUS OF PROOF SHIFTS IN PRESUMED UNDUE INFLUENCE? THE VIABILITY OF THE SHIFT
AND THE COMPARISON WITH INDIAN LAW

proceedings for the return of the gifts. So since she had knowledge of her claim for the gifts
yet she delayed in bringing it, the doctrine of laches applied. 27 A very similar case is Azaz v.
Denton28 In this case, the plaintiff was a doctor who left his job to join the meditation centre of
the defendants. He also parted with all of his property and donated it to the defendants. After a
few years, the plaintiff filed a case to claim the property back by challenging consent to be
affected by undue influence. The court applied Doctrine of laches along with section 33 of
Limitation Act 1980, which limited the remedy because of the delay in the claim. In both the
cases, the reasoning was backed with the principle derived from the case Wright v.
Vanderplank29 that delay is implied ratification or confirmation of the transaction.

The position is similar in India. In Joseph Zacharia v. Joseph Kuriakose30 it was held that if the
claimant had the sufficient time and opportunity to contend the legality of the contract and fails
to do so, the agreement would not be vitiated by undue influence. In India, Article 59 of
Limitation Act, 1963 pronounces the position of law. It says that the period of limitation (which
is three years) would start running from the point when the reasons vitiating the validity of
contract would come in the knowledge of the victimized party. So, simply delay in initiating
the proceedings would not bar the right until and unless plaintiff knew that he had the right and
consciously chose to no to take any action.31

As already noted above, the doctrine of lashes in common law courts and the Article 59 of
Indian Limitation Act 1963 limits the right to claim justice after an unreasonable delay. There
are various English Case laws32 which support this proposition. There are various Indian Case
laws like Lakshmi Doss v. Roop Laul33 and Manbhari v. Sri Ram34 which limit the remedy of
the claimant when he/she delays after knowledge of the undue influence. In the former case,
the defendant claimed to set a contract aside because of the undue influence which was
exercised on him while signing the same. The court held that the plea can’t be allowed because
of the delay. The judge held that35 if the plea was allowed, the trial would be unfair as various
pertinent evidence would have been lost because of the time gap. Therefore, in such cases, the

27
This doctrine basically bars the right to claim remedies when the plaintiff delays in initiating the proceedings
even after he knew of the problem and the right.
28
Azaz v. Denton (2009) EHWC 1759 QB (Queen’s Bench)
29
Wright v. Vanderplank (1856) 114 RR 60 (Court of Appeals)
30
Joseph Zacharia v. Joseph Kuriakose (1992) AIR 1992 Ker 103 at 105 (High Court of Kerala)
31
Lakshmi Doss v. Roop Laul (1906) 30 Mad 169 (High Court of Madras)
32
Supra note 6, 30
33
Lakshmi Doss v. Roop Laul (1906) 30 Mad 169 (High Court of Madras)
34
Manbhari v. Sri Ram (1936) AIR 1936 All 672 (High Court of Allahbad)
35
Supra note 35, at 13
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ALLCARD V SKINNER: WHETHER THE ONUS OF PROOF SHIFTS IN PRESUMED UNDUE INFLUENCE? THE VIABILITY OF THE SHIFT
AND THE COMPARISON WITH INDIAN LAW

doctrine of acquiescence should be applied and any such claim should be barred. But it must
be observed that it is only the remedy which is barred in the cases of undue influence and not
the right.36

Therefore, the position of law as demarcated in Allcard v. Sinker37 is largely similar to the
position in Indian law.

36
Prem Singh v. Birbal (206) 5 SCC 353 (Supereme Court of India)
37
Supra note 6
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ALLCARD V SKINNER: WHETHER THE ONUS OF PROOF SHIFTS IN PRESUMED UNDUE INFLUENCE? THE VIABILITY OF THE SHIFT
AND THE COMPARISON WITH INDIAN LAW

CONCLUSION

The researcher relied on the case Allcard v. Sinker38 to present some points. The researcher
first presented the concept of undue influence with the viewpoint of English as well as Indian
Law. Various relationships which are used to presume undue influence was found to be similar
in both the cases. After discussing the concept of undue influence, it was concluded that
protection against it is needed to prevent exploitation of one party because of inequality in
bargaining power and to assure that the consent given for contract is free, which can be vitiated
by such strong influences which temper the will and judgment of the individual.

The researcher then discussed the shift of onus to prove. It was seen that English law explicitly
demarcates undue influence into actual and presumed undue influence. In case of the latter one,
the court presumes influence on the basis of the relationship of the parties and then asks the
plaintiff to prove this influence to be undue influence by showing some unfairness in the
transaction. Again, in both Indian as well as English law, if the undue influence is not
conspicuous, the onus to prove the same lies on the plaintiff. Such a shift is viable and apt
because the plaintiff is in a better position to show what he sees wrong in the transaction. This
reasoning contradicts with the obiter of Indian case laws, but it was shown that the latter was
untenable.

The researcher then did a comparative analysis of English law (as manifested in the case
Allcard v. Sinker39) and the Indian law regarding the effect of the law of limitation on the claim
regarding undue influence. In both the cases, it was found that claim beyond a reasonable delay
is not allowed. If the claimant had the knowledge of undue influence and still delayed in filing
the claim, the doctrine of acquiescence would be applied and the claim would be generally
denied.

After the whole discussion in the paper, it can be concluded that the provisions regarding undue
influence are fairly lucid and viable in both English as well Indian law and are basically similar
in nature.

38
Supra note 6
39
Allcard v. Sinker (1887) 36 Ch D 145 (Court of Appeal)
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