Case: Pratima Chowdhury Vs. Kalpana Mukherjee

showing that the transaction is fair and honest.13. In judging of the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even de hors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court.14. It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it. The proposition is very clearly started in Ashburners Principles of Equity, 2nd Ed., p.229, thus:"When the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the court sets aside the gift unless the donee can prove that the gift was the result of a free exercise of the donors will."” (emphasis is ours) The above conclusions recorded by this Court, came to be reiterated recently in Anil Rishi Vs. Gurbaksh Singh, (2006) 5 SCC 558. 31. While deciding the proposition in hand, we must keep in mind the law declared by this Court on the subject of fiduciary relationship. We will also proceed by keeping in mind, what we have already concluded in the preceding paragraph, i.e., that relationship between Partha Mukherjee and Pratima Chowdhury was a relationship of faith, trust and confidence. Partha Mukherjee was in a domineering position. He was married to Sova Mukherjee. Sova Mukherjee is the daughter of H.P. Roy. Pratima Chowdhury has lived for a very long time in the house of H.P. Roy. During that period (after his marriage) Partha Mukherjee also shared the residential accommodation in the same house with Pratima Chowdhury, for over a decade. In Indian society the relationship between Partha Mukherjee and Pratima Chowdhury, is a very delicate and sensitive one. It is therefore, that Pratima Chowdhury extended all help and support to him, at all times. She gave him her flat when he was transferred to Calcutta. She also extended loans to him, when he wanted to set up an independent business at Bombay. These are illustrative instances of his authority, command and influence. Instances of his enjoying the trust and confidence of Pratima Chowdhury include, amongst others, the joint account of Pratima Chowdhury with Partha Mukherjee, which the latter operated exclusively, and the drafting of the letters on behalf of Pratima Chowdhury. In such fact situation, we are of the view, that the onus of substantiating the validity and genuineness of the transfer of flat no. 5D, by Pratima Chowdhury, through the letter dated 11.11.1992 and the document dated 13.11.1992, rested squarely on the shoulders of Kalpana Mukherjee. Because it was only the relationship between Partha Mukherjee and Pratima Chowdhury, which came to be extended to Kalpana Mukherjee. The document dated 13.11.1992 clearly expressed, that the above transfer was without consideration. Kalpana Mukherjee in her written reply before the Arbitrator asserted, that the above transfer was on a consideration of Rs.4,29,000/-. The Arbitrator in his order dated 5.2.1999 concluded, that Kalpana Mukherjee could not establish the passing of the above consideration to Pratima Chowdhury. The Cooperative Tribunal, as well as, the High Court, despite the factual assertion of Kalpana Mukherjee were of the view, that passing of consideration was not essential in determination of the genuineness of the transaction. We are of the view, that the Cooperative Tribunal, as well as, the High Court seriously erred in their approach, to the determination of the controversy. Even though the onus of proof rested on Kalpana Mukherjee, the matter was examined by requiring Pratima Chowdhury to establish all the alleged facts.We are of the view, that Kalpana Mukherjee miserably failed to discharge the burden of proof, which essentially rested on her. Pratima Chowdhury led evidence to show, that she was at Bombay on 11.11.1992 and 13.11.1992. In view of the above, the letter dated 11.11.1992 and the document dated 13.11.1992, shown to have been executed at Calcutta could not be readily accepted as genuine, for the said documents fell in the zone of suspicion, more so, because the manuscript of the letter dated 11.11.1992 was in the hand-writing of Partha Mukherjee. Leading to the inference, that Partha Mukherjee was the author of the above letter. It is therefore not incorrect to infer, that there seems to be a ring of truth, in the assertion made by Pratima Chowdhury, that Partha Mukherjee had obtained her signatures for executing the letter and document referred to above. We find no justification whatsoever for Pratima Chowdhury, to have transferred flat no. 5D to Kalpana Mukherjee, free of cost, even though she had purchased the same for a consideration of Rs. 4 lakhs in the year 1987. Specially so, when she had no direct intimate relationship with Kalpana Mukherjee. By the time the flat was transferred, more than a decade had passed by, during which period, the price of above flat, must have escalated manifold. Numerous other factual aspects have been examined by us above, which also clearly negate the assertions made by Kalpana Mukherjee. The same need not be repeated here, for reasons of brevity. Keeping in mind the above noted aspects, we are of the considered view, that invocation of the principle of justice and equity, and the doctrine of fairness, would in fact result in returning a finding in favour of Pratima Chowdhury, and not Kalpana Mukherjee.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]26. First and foremost, it surprises us thatTribunal, as also, the High Court excluded from consideration, the factual position expressed in the rejoinder filed by the appellant (before the Arbitrator). In excluding the aforesaid factual position, theTribunal and the High Court did not rely on any provision of law nor was any reliance placed on any principle accepted and recognized in legal jurisprudence. It is not a matter of dispute, that after Kalpana Mukherjee and the Society were permitted to file written replies before the Arbitrator, the rejoinder filed thereto on behalf of Pratima Chowdhury, was permitted to be taken on record. It is not in contention, that in the written replies filed before the Arbitrator, Kalpana Mukherjee had adopted inter alia the stance, that consideration was paid to Pratima Chowdhury in lieu of the transfer of flat no. 5D to her name, even though the documents relied upon by the rival parties, expressed otherwise. A number of documents not mentioned in the Dispute Case filed by Pratima Chowdhury were also relied upon by Kalpana Mukherjee. Pleadings between the parties could be considered as complete, only after Pratima Chowdhury was permitted to file a rejoinder (in case she desired to do so). She actually filed a rejoinder which was taken on record by the Arbitrator. Both parties were permitted to lead evidence, not only on the factual position emerging from the complaint filed by Pratima Chowdhury and the written replies filed in response thereto (by Kalpana Mukherjee, and the Society), but also, the factual position highlighted by Pratima Chowdhury in her rejoinder affidavit. It is, therefore, not on the basis of the pleadings of the parties, but also on the basis of the evidence led in support of the aforesaid pleadings, that the Arbitrator had recorded his findings in his award dated 5.2.1999. We are therefore of the view, that the Arbitrator had acted in accordance with law, and therefore the exclusion from consideration, of the factual position asserted by Pratima Chowdhury in her rejoinder, by theTribunal and the High Court was wholly unjustified. The factual narration by Pratima Chowdhury, could not be excluded from consideration, while adjudicating upon the rival claims between Pratima Chowdhury and Kalpana Mukherjee. The instant aspect of the decision of the High Court, is therefore liable to be set aside, and is accordingly set aside. Just the instant determination, would result in a whole lot of facts which were not taken into consideration by the adjudicating authorities, becoming relevant. Despite that, we feel, that remanding the matter for a denovo consideration, would place a further burden on the parties. Having heard learned counsel at great length, we shall settle the issues finally, here and now.27. TheTribunal in its order dated 16.5.2002 had invoked the principle of estoppel, postulated in Section 115 of the Indian Evidence Act. The High Court affirmed the conclusions drawn by theTribunal. In addition to the above principle, the High Court invoked the principles of equity and fairness. Insofar as the latter principles are concerned, we shall delve upon them after examining the contentions of the rival parties, as equity and fairness would depend upon the entirety and totality of the facts. The above aspect can therefore only be determined after dealing with the intricacies of the factual circumstances involved. We shall, however, endeavour to deal with the principle of estoppel, so as to figure whether, the rule contained in Section 115 of the Indian Evidence Act could have been invoked, in the facts and circumstances of the presentthe question whether the restoration of the original position would be iniquitous or unfair does not arise at all. Even if consideration had passed from Kalpana Mukherjee to Pratima Chowdhury, on the basis of the representation made by Pratima Chowdhury, we could have accepted that Kalpana Mukherjee had altered her position. In the facts as they have been presented by the rival parties, especially in the background of the order passed by the Arbitrator, that no consideration had passed in lieu of the transfer of the flat, and especially in the background of the factual finding recorded by theTribunal and the High Court, that passing of consideration in the present controversy was inconsequential, we have no hesitation whatsoever in concluding, that the principle of estoppel relied upon by theTribunal and the High Court, could not have been invoked, to the detriment of Pratima Chowdhury, in the facts and circumstances of the present case. Insofar as the instant aspect of the matter is concerned, the legal position declared by this Court fully supports the conclusion drawn by usalready noticed hereinabove, none of the ingredients of estoppel can be culled out from the facts and circumstances of the present case. In view of above, we hereby set aside the determination by theTribunal, as also the High Court, in having relied on the principle of estoppel, and thereby, excluding the pleas/defences raised by Pratima Chowdhury to support her claim.28. The admitted factual position in the present controversy, in our considered view, is absolutely clear and unambiguous. Had the different adjudicating authorities taken into consideration the undisputed factual position, there ought not to have been much difficulty in resolving the difficulty. We shall highlight a few relevant admitted facts which crossed our mind while hearing the matter and whilst recording theThe reason for transferring flat no. 5D indicated in the letters dated 11.11.1992 and 13.11.1992 was on account of the close relationship between Pratima Chowdhury and Kalpana Mukherjee, which was expressed by observingnominee Kalpana, a close relative ofAs a matter of fact, there was no close relationship between Pratima Chowdhury and Kalpana Mukherjee. Pratima Chowdhury, is indicated to have been living in Bombay and never visiting Calcutta. Kalpana Mukherjee is a resident of Calcutta, who was in employment at Calcutta, and had started to reside with her son Partha Mukherjee, after he moved to Calcutta alongwith his wife Sova Mukherjee. There was no direct relationship between Pratima Chowdhury and Kalpana Mukherjee. Pratimaniece Sova Mukhrjee was married to Partha Mukherjee, son of Kalpana Mukherjee. The only relationship that can be assumed, is of aunty and niece, between Pratima Chodhury and Sova Mukherjee. If on account of love and affection, for her niece, Pratima Chowdhury desired to transfer flat no. 5D which she had purchased for a consideration of Rs.4 lakhs, she would have done so by transferring it to the name of her niece Sova Mukherjee. Affinity to Sova Mukherjee, and the love, affection and welfare of Sova Mukherjee, would not extend to a gesture of the nature under reference, i.e., by way of transfer of immovable property, of substantial value, without consideration, to the mother in law of Sova Mukherjee. Therefore, factually the expression of close relationship between Pratima Chwodhury and Kalpana Mukherjee depicted in letters dated 11.11.1992 and 13.11.1992 are on the face of it, false and incorrect. It is, therefore, improper for the adjudicating authorities to have accepted the factum of close relationship of the parties, in so far as, the transfer of flat no. 5D, is concerned.(ii) There is hardly any justification for having accepted another important factual position depicted in the letters dated 11.11.1992 and 13.11.1992. In this behalf, our reference is to the fact that flat no. 5D was sought to be transferred by Pratima Chowdhury to Kalpana Mukherjee, without consideration. First and foremost, the aforesaid factual position is not acceptable on account of the statement of Kalpana Mukherjee herself.In the written reply filed before the Arbitrator, Kalpana Mukherjee took the express stance, that Pratima Chwodhury had transferred flat no. 5D to her name, by accepting a consideration of Rs.She further asserted, that the aforesaid consideration had passed from Kalpana Mukherjee to Pratima Chowdhury through Partha Mukherjee. According to Kalpana Mukherjee, Partha Mukherjee transferred shares in his name valued atto the name of Pratima Chowdhury. Per se therefore, even Kalpana Mukherjee denied the factual position indicated in the above letters, whereby flat no. 5D was transferred from the name of Pratima Chowdhury, to that of Kalpana Mukherjee.(iii) The letters dated 11.11.1992 and 13.11.1992 expressly recorded, that the factual position narrated in the above letters was on account ofwith the rules regulating such transfer, and also, for avoiding futureIn view of the factual position noticed in the foregoing paragraphs, it is apparent, that false facts were being recorded for compliance with the rules and regulations, as also, for avoiding future complications. One would have appreciated the recording of consideration in lieu of the transfer of property from the name of Pratima Chowdhury to that of Kalpana Mukherjee, to avoid future complications, rather than withholding the same. It is clearly not understandable, what kind of complications were being avoided. Expressing the above factual position in the letters under reference, makes the whole transaction suspicious, mistrustful and possibly fraudulent too. In the absence of any relationship, the party benefiting from the letters dated 11.11.1992 and 13.11.1992, would have successfully avoided all complications merely by incorporating consideration, which was to pass from Kalpana Mukherjee to the transferee Pratima Chowdhury. If consideration was to pass, and had actually passed, it is difficult to understand why the parties would say, that the transaction did not involve passing of consideration. It is therefore clear, that all the ingredients of letter dated 11.11.1992 and 13.11.1992 are shrouded in suspicious circumstances. One is prompted to record herein, that it was not legitimately open to the parties to record in the letters under reference, that flat no. 5D was being gifted by Pratima Chowdhury to Kalpana Mukherjee, on account of lack of proximity between the parties. The transfer of the said property by one to the other, by way of gift, would obviously have been subject to judicial interference, as the same would at least prima facie, give the impression of dubiety. It was therefore, that Kalpana Mukherjee hastened to adopt a different factual position in her written reply before the Arbitrator.(iv) It is relevant to mention, that in the written statement filed by Kalpana Mukherjee (before the Arbitrator) the stand adopted by her was, that a consideration of Rs.4,29,000/had passed from her to Pratima Chowdhury, by way of transfer of shares (standing in the name of her son, Partha Mukherjee) to the name of Pratima Chowdhury. In this behalf it would be relevant to notice, that the documents of transfer executed between Pratima Chowdhury and Kalpana Mukherjee were dated 11.11.1992 and 13.11.1992. Based thereon, the Board of Directors of the Society, in its meeting held on 14.2.1993, resolved to accept the resignation of Pratima Chowdhury. It was further resolved, to accept the membership of Kalpana Mukherjee in her place. On the date of execution of the documents under reference, as also on the date of passing of the resolution by the Board of Directors of the Society, Partha Mukherjee did not have any shares in his name. The shares which Partha Mukherjee acquired, and which Kalpana Mukherjee claims to have been transferred in lieu of consideration (to the name of Pratima Chowdhury), were shown to have been acquired on or after 8.9.1993. The dates of acquisition of the said shares, as were recorded in the order passed by the Arbitrator, which position has not been disputed before us, are asNAME NO. OF SHARES ACQUIREDTata Chemicals Ltd. 50 nos. 8.9.93Tata Chemicals Ltd. 450 nos. 27.10.93Siemens 50 nos. 2.8.93Indian Aluminium 500 nos. 4.3.94I.T.C. Hotels 100 nos. acquired withMr.H.P.is therefore apparent, that Partha Mukherjee did not even have the shares referred to by the transferee Kalpana Mukherjee, in his name, when the transfer documents were executed on 11.11.1992 and 13.11.1992, or even on 14.2.1993 when the Board of Directors of the Society, passed the transfer resolution. The above shares are shown to have been transferred to the name of Pratima Chowdhury on 16.12.1994. Well before 16.12.1994, even according to the stance adopted by Kalpana Mukherjee, Pratima Chowdhury had executed all the transfer documents. It is therefore difficult to accept, that the parties had agreed to pass on consideration by transfer of shares, which were not even owned by Kalpana Mukherjee (through Partha Mukherjee) on the date of transfer of flat no. 5D from Pratima Chowdhury to Kalpana Mukherjee. In sum and substance therefore, on undisputed facts, the stance adopted by Kalpana Mukherjee in the written statement filed by her before the Arbitrator, is shown to be false. This aspect of the matter would bring out a legitimate query, namely, why should Kalpana Mukherjee have adopted a false stance, contrary to the expressed position in the letters dated 11.11.1992 and 13.11.1992. This further exposes, the suspicious nature of the transfer transaction.(v) On the subject of transfer of shares from the name of Partha Mukherjee to the name of Pratima Chowdhury, which, according to Kalpana Mukherjee constituted passing of consideration to Pratima Chowdhury (in lieu of the transfer of flat no. 5D). Pratima Chowdhury had adopted the stance, that the transfer of the above shares was on account of return of loans extended by Pratima Chowdhury to Partha Mukherjee. Insofar as the instant aspect of the matter is concerned Pratima Chowdhury had asserted, that after the transfer of Partha Mukherjee from Calcutta to Bombay in the year 1993, he gave up his employment with Colgate Palmolive (India) Limited, and started a business of aluminium products with one R.K. Sen, at Bombay. To help Partha Mukherjee with his above business venture, Pratima Chowdhury had (on the asking of Partha Mukherjee) paid a sum of Rs. 2 lakhs by way of cheque, to Bharat Aluminium Company Limited, for supply of raw materials to Parthabusiness venture. It was also pointed out, that Partha Mukherjee had also taken a loan for a sum of Rs. 1,50,000/for the same purpose from Bani Roy (sister of Pratima Chowdhury). It was also asserted, that Sova Mukherjee had similarly extended loans, by making payments through cheque to Partha Mukherjee. The Arbitrator had accepted the above assertion of Pratima Chowdhury. For the above determination, the Arbitrator had placed reliance, on documentary and oral evidence, produced by Pratima Chowdhury. The instant factual aspect of the matter was totally overlooked by theTribunal, as well as, by the High Court. Keeping in view the factual position depicting in paragraph (iv) above, we have no doubt in our mind, that there was substance in the determination of the Arbitrator, specially on account of the fact that transfer of shares from the name of Partha Mukherjee to the name of Pratima Chowdhury came to be effected, well after the transfer of flat no. 5D to the name of Kalpana Mukherjee. For the above reason as well, the findings of fact recorded by theTribunal as well as by the High Court, are bound to be considered as having been recorded without taking into consideration all the material and relevant facts.(vi) The fact that Pratima Chowdhury had addressed a letter to the Secretary of the Society, dated 28.2.1995, for withdrawal of her earlier letter dated 11.11.1992, is not in dispute. It is also not a matter of dispute, that at the time when Pratima Chowdhury addressed the above letter, neither the transfer of membership, nor the transfer of the flat, had assumed finality. The transfer of membership, as also the transfer of the flat, would assume finality only upon the approval of the same by the Deputy Registrar,Societies. The factual position emerging from the record of the case reveals, that the Society sought the approval of the Deputy Registrar,Societies for the transfer of membership, as also, flat no. 5D to the name of Kalpana Mukherjee on 13.3.1995. Undoubtedly, Pratima Chowdhury had sought revocation, before the transfers under reference had assumed finality. It is in the above background, that one needs to evaluate the reply of the Society dated 10.4.1995. Through the letter dated 10.4.1995, Pratima Chowdhury was informed, that the Society had no authority to look into the matter, after the resolution of the Board of Directors dated 2.4.1995. We find the above explanation, untenable. It was imperative for the Society to have examined the withdrawal letter dated 28.2.1995, the matter certainly had not been concluded. Well after the withdrawal letter, the Society by its notice dated 16.4.1995 had intimated its members, about the resolution dated 2.4.1995. The matter was, therefore, pending authoritative conclusion. Thus viewed, it was not justified for the Society to deny consideration of the withdrawal letter dated 28.2.1995. Acceptance or rejection on merits is another matter, butis not understandable. The instantclearly invalidates the resolution passed by the Society.(vii) On 22.3.1995, Pratima Chowdhury addressed a letter to the Deputy Registrar,Societies, imploring him to take appropriate action, by considering the withdrawal letter dated 28.2.1995. We are surprised, that the Deputy Registrar,Societies adopted the same stance, as was adopted by the Society. When the letter dated 22.3.1995 was addressed to the Deputy Registrar,Societies, it had not yet granted approval to the recommendations made by the Society. The receipt of the letter dated 28.2.1995, by the Society (as also the receipt of the letter dated 22.3.1995, by the Deputy Registrar,Societies) is not in dispute. It is imperative for us therefore to conclude, that the decision taken by the Deputy Registrar,Societies was, without reference to the withdrawal letter dated 28.2.1995 (which was enclosed with the letter dated 22.3.1995 addressed to the Deputy Registrar,Societies). The determination by the Deputy Registrar, Cooperative Societies, cannot therefore be treated as a valid and legitimate consideration. Acceptance or rejection on merits is another matter, butis just not understandable. The instantclearly invalidates the approval granted by the Deputy Registrar,Societies.(viii) The veracity of the execution of the documents dated 11.11.1992 and 13.11.1992 by Pratima Chowdhury, was also examined by the Arbitrator. In the above examination, the Arbitrator arrived at the conclusion, that Pratima Chowdhury was in Bombay and not in Calcutta when the above documents were executed. The above finding was recorded on the basis of three witnesses produced on behalf of the complainant (before the Arbitrator). While rejecting the conclusion drawn by the Arbitrator, theTribunal overlooked the statements of the witnesses produced by Pratima Chowdhury, merely because the notary was an Advocate. TheTribunal reasoned, that the statement of S.N. Chatterjee, an Advocate, had to be given more weightage, than the witnesses produced by Pratima Chowdhury. The above determination at the hands of theTribunal, besides being perverse, is also totally unacceptable in law. In the facts and circumstances of the present case, the statement of the notary should have been rejected and discarded, simply because the notary in his deposition had acknowledged, that he did not issue any notarial certificate in terms of Section 8 of the Notary Act. In the absence of issuance of any such certificate, notarization of the document dated 13.11.1992 was clearly subject to suspicion. The conclusion drawn by theTribunal as also the High Court, to the effect that the document dated 13.11.1992 was executed at Calcutta, is therefore, based on no evidence whatsoever. The fact that the document dated 13.11.1992 had not been executed in Calcutta, was also sought to be substantiated by showing, that the registration number of the Society was not depicted in the said letter, even though the said letter was shown to have been executed at the residence of the Secretary of the Society. It was reasoned, that the Secretary of the Society would have supplied the aforesaid number, if the above document had been executed at his residence. Having rejected the credibility of the statement of S.N. Chatterjee (the notary), and having not accepted the fact that the above document was executed at the residence of Anil Kumar Sil, the Secretary of the Society, we find no reason for not accepting the statements of the three witnesses produced by Pratima Chowdhury, to show that she (Pratima Chowdhury) was at Bombay on 11.11.1992, as well as, on 13.11.1992. Herein again,l and the High Court,erred on the face of the record, by not taking into consideration material facts, available on the file of the case.(ix) In the background of the factual position emerging from the deliberations recorded hereinabove, it is also necessary to notice, that the Arbitrator had placed heavy reliance on the fact, that Kalpana Mukherjee had deposited rent on 21.10.1993 (payable to Pratima Chowdhury), into the account of Pratima Chowdhury, by herself, filling up the bank deposit voucher. Accordingly, the Arbitrator inferred, that the property in question, even to the knowledge of Kalpana Mukherjee, had not actually been transferred to her name by Pratima Chowdhury (at least upto 21.10.1993). That was the reason, why Kalpana Mukherjee had continued to deposit rent for flat no. 5D, into the account of Pratima Chowdhury upto 21.10.1993. Coupled with the aforesaid factual aspect, the Arbitrator placed great reliance on the letter dated 28.10.1993 addressed by Partha Mukherjee to Colgate Palmolive (India) Limited, wherein, he described Pratima Chowdhury as theUndoubtedly, if the documents relied upon by Kalpana Mukherjee were genuine, Partha Mukherjee would not have acknowledged the ownership of Pratima Chowdhury over flat no. 5D (on 28.10.1993). These aspects of the matter were totally overlooked by theTribunal, as well as, by the High Court. These were vital facts, and needed to be examined, if the order passed by the Arbitrator was to be interfered with. In the absence of such consideration, the findings of fact recorded by theTribunal and by the High Court, are bound to be considered as perverse. Since the factual position attributed to the actions of 21.10.1993 and 28.10.1993, which emanated and emerged from Kalpana Mukherjee and Partha Mukherjee respectively, we are of the view that entire sequence of transfer, is rendered doubtful and suspicious.(x) The determination of the Arbitrator, on the subject of the transfer of the covered garage, to the name of Kalpana Mukherjee was also overlooked by theTribunal, as well as, by the High Court. From the facts already narrated above, it is clear that Pratima Chowdhury, had one covered garage space also. Whilst reference was made about the details of the flat sought to be transferred, in the transfer documents, no reference was made to the covered garage space. Based on the letter dated 11.11.1992, and the document dated 13.11.1992, flat no. 5D was transferred to the name of Kalpana Mukherjee. The instant transfer however did not include the covered garage space. Thereafter, based on an agreement executed between Kalpana Mukherjee (on the one hand), and the Society (on the other), the said covered garage space was transferred to the name of Kalpana Mukherjee, on 25.4.1995. The said transfer was not at the behest of, or with the concurrence of Pratima Chowdhury. Therefore, according to the view expressed by the Arbitrator, the covered garage space, must be deemed to have never been transferred to Kalpana Mukherje by its erstwhile owner. The Arbitrator also expressed the view, that the agreement dated 25.4.1995 could not have been executed without the participation of Pratima Chowdhury. The above factual position has not been disputed at the hands of Kalpana Mukherjee, before this Court. The above reasoning, in our considered view, was fully justified. The instant aspect of the matter was also totally overlooked by theTribunal, as well as, by the High Court. For the above reason also, the findings of the fact, recorded by theTribunal and by the High Court, are bound to be treated as perverse.For all the reasons recorded by us in foregoingwe are of the view that theTribunal as well as the High Court, seriously erred in recording their conclusions. We are satisfied in further recording, that the Arbitrator was wholly justified in allowing the Dispute Case filed by Pratima Chowdhury, by correctly appreciating the factual and legal position.30. TheTribunal as well as the High Court, had invoked the principle of justice and equity, and the doctrine of fairness, while recording their eventual findings in favour of Kalpana Mukherjee. It is, therefore, necessary for us, to delve upon the above aspect of the matter.In judging of the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even de hors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court.14. It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it.While deciding the proposition in hand, we must keep in mind the law declared by this Court on the subject of fiduciary relationship. We will also proceed by keeping in mind, what we have already concluded in the preceding paragraph, i.e., that relationship between Partha Mukherjee and Pratima Chowdhury was a relationship of faith, trust and confidence. Partha Mukherjee was in a domineering position. He was married to Sova Mukherjee. Sova Mukherjee is the daughter of H.P. Roy. Pratima Chowdhury has lived for a very long time in the house of H.P. Roy. During that period (after his marriage) Partha Mukherjee also shared the residential accommodation in the same house with Pratima Chowdhury, for over a decade. In Indian society the relationship between Partha Mukherjee and Pratima Chowdhury, is a very delicate and sensitive one. It is therefore, that Pratima Chowdhury extended all help and support to him, at all times. She gave him her flat when he was transferred to Calcutta. She also extended loans to him, when he wanted to set up an independent business at Bombay. These are illustrative instances of his authority, command and influence. Instances of his enjoying the trust and confidence of Pratima Chowdhury include, amongst others, the joint account of Pratima Chowdhury with Partha Mukherjee, which the latter operated exclusively, and the drafting of the letters on behalf of Pratima Chowdhury. In such fact situation, we are of the view, that the onus of substantiating the validity and genuineness of the transfer of flat no. 5D, by Pratima Chowdhury, through the letter dated 11.11.1992 and the document dated 13.11.1992, rested squarely on the shoulders of Kalpana Mukherjee. Because it was only the relationship between Partha Mukherjee and Pratima Chowdhury, which came to be extended to Kalpana Mukherjee. The document dated 13.11.1992 clearly expressed, that the above transfer was without consideration. Kalpana Mukherjee in her written reply before the Arbitrator asserted, that the above transfer was on a consideration of Rs.The Arbitrator in his order dated 5.2.1999 concluded, that Kalpana Mukherjee could not establish the passing of the above consideration to Pratima Chowdhury.e Tribunal, aswell as, the High Court, despite the factual assertion of Kalpana Mukherjee were of the view, that passing of consideration was not essential in determination of the genuineness of the transaction. We are of the view, thate Tribunal, aswell as, the High Court seriously erred in their approach, to the determination of the controversy. Even though the onus of proof rested on Kalpana Mukherjee, the matter was examined by requiring Pratima Chowdhury to establish all the alleged facts.We are of the view, that Kalpana Mukherjee miserably failed to discharge the burden of proof, which essentially rested on her. Pratima Chowdhury led evidence to show, that she was at Bombay on 11.11.1992 and 13.11.1992. In view of the above, the letter dated 11.11.1992 and the document dated 13.11.1992, shown to have been executed at Calcutta could not be readily accepted as genuine, for the said documents fell in the zone of suspicion, more so, because the manuscript of the letter dated 11.11.1992 was in thehandwriting of Partha Mukherjee.Leading to the inference, that Partha Mukherjee was the author of the above letter. It is therefore not incorrect to infer, that there seems to be a ring of truth, in the assertion made by Pratima Chowdhury, that Partha Mukherjee had obtained her signatures for executing the letter and document referred to above. We find no justification whatsoever for Pratima Chowdhury, to have transferred flat no. 5D to Kalpana Mukherjee, free of cost, even though she had purchased the same for a consideration of Rs. 4 lakhs in the year 1987. Specially so, when she had no direct intimate relationship with Kalpana Mukherjee. By the time the flat was transferred, more than a decade had passed by, during which period, the price of above flat, must have escalated manifold. Numerous other factual aspects have been examined by us above, which also clearly negate the assertions made by Kalpana Mukherjee. The same need not be repeated here, for reasons of brevity. Keeping in mind the above noted aspects, we are of the considered view, that invocation of the principle of justice and equity, and the doctrine of fairness, would in fact result in returning a finding in favour of Pratima Chowdhury, and not Kalpana Mukherjee.