Monthly Archives: April 2014

Allegations of fraud, misrepresentation and undue influence – Burden of Proof

When fraud, misrepresentation 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 dominating position and he has to prove that there was fair play in the transaction and that the apparent is the real, 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. A Person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the court watches with jealousy all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast against the person holding the position of confidence or trust to show that that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position. This principle has been engrained in Section 111 of the Evidence Act, 1872. The rule here laid down is in accordance with a principle long acknowledged and administered in Courts of Equity in England and America. This principle is that he who bargains in a matter of advantage with a person who places confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The transaction is not necessarily void ipso facto nor is it necessary for those who impeach it to establish that there has been fraud or imposition, but the burden of establishing its perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. The rule applies equally to all persons standing in confidential relations with each other. Agents, trustees, executors, administrators, auctioneers and other have been held to fall within the rule. The section requires that the party on whom the burden o proof is laid should have been in a position of active confidence. Where fraud is alleged, the rule has been clearly established in England that in case of a stranger equity will not set aside a voluntary deed or donation, however improvident it may be, if it be free from the imputation of fraud, surprise, undue influence and spontaneously executed or made by the donor with his eyes open. Where an active confidential, or fiduciary relation exists between the parties, there the burden of proof is on the done or those claiming through him. It has further been laid down that where a person gains a great advantage over another by a voluntary instrument, the burden of proof is thrown upon the person receiving the benefit and he is under the necessity of showing that the transaction is fair and honest. Pratima Chowdhury v. Kalpana Mukherjee, (2014) 4 SCC 196.

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Filed under Burden of Proof, Civil Law

Evidence – Collected by illegal means

It is a settled legal proposition that evidence collected even by improper or illegal means is admissible if it is relevant and its genuineness stands proved. However, the Court may be cautious while scrutinizing such evidence. In such a fact situation, it may be considered a case of procedural lapse on the part of the Investigating Officer and it should not be discarded unless the appellant satisfies the court that any prejudice has been caused to him. Madhu v. State of Karnataka, 2014 (84) ACC 329.

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Filed under Criminal Law, Evidence

Reputation – A Personal Right

Allegations against any person if found to be false or made forging someone else’s signature may affect his reputation. Reputation is a sort of right to enjoy the good opinion of others and it is a personal right and an injury to reputation is a personal injury. Thus, scandal and defamation are injurious to reputation. Reputation has been defined in dictionary as “to have a good name; the credit, honour, or character which is derived from a favorable public opinion or esteem and character by report.” Personal rights of a human being include the right of reputation. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property. Therefore, it has been held to be a necessary element in regard to right to life of a citizen under Article 21 of the Constitution. The International Covenant on Civil and Political Rights, 1966 recognises the right to have opinions and right to freedom of expression under Article 19 is subject to the right of reputation of others. Reputation is “not only a salt of life but the purest treasure and the most precious perfume of life.” Umesh Kumar v. State of Andhra Pradesh, (2014) 1 SCC (Cri) 338.

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Filed under Criminal Law, Reputation

Composite Negligence and Contributory Negligence – Difference Between

‘Composite Negligence’ refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his ‘contributory negligence’. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence. Pawan Kumar v. Harkishan Dass Mohan Lal and others, (2014) 3 SCC 590.

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Filed under Composite Negligence, Negligence

Cosmetic Product and Medicament – Distinction Between

In Commissioner of Central Excise v. Ciens Laboratories, Mumbai, (2013) 14 SCC 133 it was held as under:
“Firstly when a product contains pharmaceutical ingredients that have therapeutic or prophylactic or curative properties, the proportion of such ingredients is not invariably decisive. What is of importance is the curative attributes of such ingredients that render the product a medicament and not a cosmetic.
Secondly, though a product is sold without a prescription of a medical practitioner, it does not lead to the immediate conclusion that all products that are sold over/across the counter are cosmetics. There are several products that are sold over the counter and are yet, medicaments.
Thirdly, prior to adjudicating upon whether a product is a medicament or not, the courts have to see what the people who actually use the product understand the product to be. If a product’s primary function is “care” and not “cure”, it is not a medicament. Cosmetic products are used in enhancing or improving a person’s appearance or beauty, whereas medicinal products are used to treat or cure some medical condition. A product that is used mainly in curing or treating ailments or diseases and contains curative ingredients even in small quantities, is to be branded as a medicament.”

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Filed under Commercial Law, Drugs and Cosmetics