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ShamsudIn Vs. Abdul Hoosein - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 830 of 1904
Judge
Reported in(1906)8BOMLR252
AppellantShamsudin
RespondentAbdul Hoosein
DispositionSuit dismissed
Excerpt:
mahomedan law - spes successions-transfer-transaction in the nature of a family arrangement-pardanishin lady-deed taken from her.;under the mahomedan law a mere spes successions cannot be the subject of a valid transfer. but this principle does not affect a transaction, in the nature of a family arrangement, by which the father makes immediate provision for his daughter, to take effect both in his life-time and after his death in consideration of the daughter agreeing not to claim her legal share as heir on his death.;whether such a transaction should be set aside as inequitable depends upon circumstances at the time it was made, not upon subsequent events.;ganga baksh v. jagat bahadur sing (1895) i.l.r. 23 cal. 15 and rannie v. irvine (1844) 4 m. & g. 969 at p. 976 followed.;the law.....chandavarkar, j.1. this suit was filed on the 1st of december 1904 by fatmaboo, daughter of one kallimuddin amiruddin, deceased, to recover her share in his properties as one of his heirs. it was alleged by her in the plaint that her father had obtained from her, oh the 25th of october l895 a gujerati writing whereby, in consideration of a sum of rs. 9,000 which he had agreed to credit to her in his books, she had relinquished and released all her right, present and future, by way of inheritance or otherwise in all his properties, but that the said writing, having not been registered, was inadmissible in evidence against, and not binding upon, her.2. fatmaboo having died on the 21st of april 1905, her husband (goolam hussein abdulalli) and her son (sumsuddin) were substituted as her heirs.....
Judgment:

Chandavarkar, J.

1. This suit was filed on the 1st of December 1904 by Fatmaboo, daughter of one Kallimuddin Amiruddin, deceased, to recover her share in his properties as one of his heirs. It was alleged by her in the plaint that her father had obtained from her, oh the 25th of October l895 a Gujerati writing whereby, in consideration of a sum of Rs. 9,000 which he had agreed to credit to her in his books, she had relinquished and released all her right, present and future, by way of inheritance or otherwise in all his properties, but that the said writing, having not been registered, was inadmissible in evidence against, and not binding upon, her.

2. Fatmaboo having died on the 21st of April 1905, her husband (Goolam Hussein Abdulalli) and her son (Sumsuddin) were substituted as her heirs and legal representatives on the 17th of July 1905. In Suit No. 460 of 1905, brought by the first defendant against the present plaintiffs as Fatmaboo's heirs, for compelling the Registrar to register the Gujerati writing above referred to, I held that the deed did not fall within the class of documents requiring, under the Registration Act, compulsory registration: Abdool v. Goolain (1905) 7 Bom. L.R. 742. On the 24th of August 1905, when the present suit came on for hearing before me, a prayer was made for amendment of the plaint by inserting the allegation that the Gujerati writing of the 25th of October 1895 had been obtained from Fatmaboo by her father by means of undue influence exercised over her. The amendment prayed for was allowed and the suit has been tried on several issues involving questions both of law and fact.

3. The first question is as to the validity and binding character of the deed executed by Fatmaboo. That deed, marked Ex. F, was executed at Cambay, where both Kallimudin and Fatmaboo lived. After reciting that Fatmaboo has a right of inheritance to all the properties which her father possesses at Cambay, Bombay, Bakha, Bassein and other places., and of which he may die possessed, and that her mother directed him to give her ornaments, the deed goes on to say that, in consideration of her father having agreed to give her on the terms mentioned in the deed a sum of Rs. 9;000, she relinquishes all her rights and claims, that she shall have no right to any property belonging to her father at his death and that he is at liberty to leave his property to his other heirs 'excepting the above-mentioned sum' of Rs. 9,000.

4. The first point raised in support of the plaintiff's claim to a share in Kallimudin's properties is that the deed in question is void as a nullity, because thereby Fatmaboo relinquished her expectant interest in her father's property, which interest, at the date of the execution of the deed, was a mere spes successionis, and such interest, both according to the Mahomedan law and the Transfer of Property Act, cannot be the subject of a valid transfer. Reliance is placed in support of this contention on Case No. XI cited in the 'Precedents of Inheritance' at page 89 of Macnaughten's ' Principles and Precedents of Mahomedan Law' and the case of Mussummaut Khanum Jan v. Mussummaut Jan Beebee (1827) 4 S.D.A. (Beng.) 210. It is clear from his footnote that Macnaughten took his precedent from the latter case. There two sisters executed a deed in favour of their brothers renouncing their right to inherit their mother's property in consideration of Rs. 1,000 received by each sister from the brothers. The mother was alive and in possession of her property at the date of the deed. On the mother's death the two sisters sued the brothers for their legal share of the property left by the mother. The brothers in defence set up the deed of renunciation by the sisters and also an alleged deed of gift by the mother to the brothers, of which mention was made in the former deed. The Provincial Court, where the suit was heard, consulted two of its law officers. One of them was of opinion that the deed of gift being a nullity, the deed of renunciation was also void. The other declared that a renunciation by an expectant heir of his chance or possibility of succession is null and void, 'being in point of fact giving up that which had no existence.' The Provincial Court, acting upon these opinions, set aside the deeds and allowed the claim. That decision went up in appeal to the Sudder Divany Adawlut who consulted their law officers. These pronounced in favour of the opinions expressed by the two officers consulted by the Provincial Court. The Sudder Divany Adawlut, however) disposed of the appeal on a different point, leaving the question of the validity of the deed of renunciation untouched. The opinions of the law officers, consulted by the Court, appear, however, to be clearly against the validity of such a deed. According to them, a mere spes successionis. under the Mahomedan Law, cannot be the subject of a valid transfer. That is also the law under the Transfer of Property Act. Section 6(a) of the Act provides that ' the chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the (death of a kinsman, or any other mere possibility of a like nature, cannot be transferred'. To the same effect is the decision of the Judicial Committee of the Privy Council in Sham Sunder Lal v. Aohhan Kunwar (1898) L.T. 25 I.A. 183 where it was held that, under the Hindu Law, a person cannot make a valid disposition of or bind his expectant interests.

5. The present case, however, is, in my opinion, different. It is not a correct view of the transaction evidenced by the deed, Ex. F, executed by Fatmaboo, that it is either a transfer or a renunciation of her expectant interest. It is true that she speaks in the deed of relinquishment by her of her right of inheritance ; but, in the words of Lord Herschell in Me Entire v. Grossley Brothers [1895] A.C. 457 , 'the agreement must be regarded as a whole -its substance must be looked at. The parties cannot, by the insertion of any mere words, defeat the effect of the transaction as appearing from the whole of the agreement into which they have entered. If the words in one part of it point in one direction and the words in another part in another direction, you must look at the agreement as a whole and see what its substantial effect is.... It is only by a study of the whole of the language that the substance can be ascertained.' Now, by this deed (Ex. F), Fatmaboo conveys or transfers nothing either in presenti or in futuro. There is no person mentioned to whom any transfer is made. It is neither a sale of, nor an agreement to sell, her expectant interest. Nor is it a gift thereof. The transaction is between her father as owner of certain property and herself as his daughter. In effect the father says to her:-' I wish to leave my property at my death to other heirs than yourself and give you now, in lieu of the legal share to which you may become entitled on my death, certain property.'' And the daughter agrees. There is no renunciation of her right to inherit. On the other hand, such right is recognised. All that is effected is that in virtue of that right she agrees to take on her father's death particular property carved out of his estate in lieu of her legal share in consideration of the father giving her certain present benefits out of that property. It is a contract between her and her father by which, she agrees to take on his death specific property instead of her legal share and to make no other claim on his estate or against his other heirs taking it. When the father dies, her right to inherit is represented by what she has agreed to take from the estate under the contract. The rest of the estate goes to the other heirs not because she transfers it to them. The contract was not between her and them. She never transferred or agreed to transfer her interest to them. She agreed with her father to accept in his life-time an allotment to her of a specific portion of his estate in recognition of her expectant right as one of his heirs. The transaction was in the nature of a family arrangement by which the father made immediate provision for his daughter, to take effect both in his life-time and after his death, and to which the daughter consented in consideration of the present benefits received and the future benefits to be received by her.

6. I have been unable to find any principle of Mahomedan Law or decision binding upon me in support of the view that such a transaction is a nullity. On the other hand, if we have regard to the analogous principle of Mahomedan Law, by which an owner of property is allowed to devise the whole of it as he likes, provided he has the consent of his heirs, given, as to Sunnis, on his death, and as to Shias, whether in his lifetime or after his death, it seems reasonable to hold that a transaction of the nature we have here is not opposed to the spirit of that law. The parties in the present case are admittedly Shias. If a Shia can will away his property as he likes with the consent of his expectant heirs, who have no more than a possibility or chance of succession, why should there be any objection on principle to his leaving that property to some of those heirs with the consent of the rest after giving to the latter something out of his property? What is there in either the letter or the spirit of the Mahomedan law which prohibits an owner of property from giving a part of his property in his life-time to one of his heirs in lieu of what he might inherit after his death, in consideration of that heir agreeing to leave the property free to be inherited by the other heirs when the owner dies. It was urged by Mr. Inverarity, on the authority of the decision of the Privy Council in the Tagore case, that the transaction evidenced by the deed, Ex. F, was void because it altered the law of descent as laid down by the Mahomedan Law. But I can see no such alteration. If my view of the transaction is correct, if, that is, Fatmaboo is recognised by the deed as an heir, if she is not disinherited but all that is done is that she is to receive, not her share of the property in specie which her father might leave on his death but as an equivalent of it, something else instead, the course of descent prescribed by the Mahomedan Law, so far from being altered, is substantially complied with. All that is effected is that one of the heirs obtains one kind of property instead of another and that by her own consent given for consideration. It would require very strong and clear authority, whether under the Mahomedan law or other, to justify any Court in holding such a transaction to be a nullity.

7. The next question is whether the contract, evidenced by Ex. F, is voidable on the ground of undue influence.

8. Before discussing the evidence as to the circumstances under which the deed, Ex. F, was obtained from Fatmaboo, it is necessary to deal with the transactions between her and her father Kallimuddin and between her and the first defendant which, it is alleged, preceded the transaction under Ex. F.

9. First, we have the will, Ex. 20, alleged to have been executed by Kallimuddin on the 28th of April 1880 and to have been consented to by Fatmaboo. The first defendant affirms that it is in his handwriting and that it was executed by his father in his own presence and in that of Fatmaboo, Abdul Hussein Abdulally, and Abdoolabhoy Moola Kamruddin. The last two have been examined in the case and identify their attestations on the document and the mark purporting to be Fatmaboo's. There are some discrepancies in the evidence of these witnesses, but I think those are natural, considering that they are speaking to events which occurred twenty years ago. I have compared the signature of Kamruddin on Ex. 20 with his signatures on Ex. A17 and the bundle of Chittis in Ex. 39 and I do not see any striking difference in the character of the handwriting. Such dissimilarity as there is can be easily accounted for by the difference of years between the signatures. The appearance of the paper on which the will is written, the way in which it appears to have been folded, the fact that the inside of the fold is fresher than the outside, and the white colour, which has appeared over the writing on some of the folds, are all in favour of the genuineness of the document and leave no doubt that the document is old and was written several years ago. The only thing against it is that it was not produced by the first defendant until December 1905. He states that his solicitor having last December asked him to bring all the papers of his father which he had in his possession., he went to Cambay and looked into all the papers in his house there more carefully than he had done before making his affidavit of documents. It was then, he says, that he discovered this will in a receptacle, wrapped up in a paper among other papers. Though his answers in cross-examination as to where and how he found the will are not quite satisfactory yet I am not prepared to disbelieve his story entirely. Upon the whole, I find Ex. 20 to be the will of Kallimuddin and that Fatmaboo attested it by way of consent. It is doubtful, however, whether Fatmaboo was at that time able to understand the effect of her act. According to the plaintiffs, she was then not more than fifteen years of age. According to the first defendant she was then twenty. The evidence as to her age is not of such a character, on either side, as to enable me to fix it with any degree of precision. The burden of proof lay, under the circumstances, on the first defendant, especially as Fatmaboo could then only make her mark and she could neither read nor write. I am not satisfied, therefore, that the consent was given by her under such circumstances as to make it binding upon her. Moreover, the consent was given in consideration of her receiving Rs. 1500 on the death of Kallimuddin and the first defendant admits that he did not pay that sum to her when that event happen? ed. Kallimuddin has himself by his conduct revoked the will, inasmuch as he died leaving a wakfnama,Ex. A17,in respect of his property. The will, therefore, was not binding on Fatmaboo when her father died. The relevancy of this evidence, however, is this. It shows that from a comparatively early period of her life her father was anxious to arrive at a settlement with her in regard to the devolution of his property on his death.

10. The next transaction between Kallimuddin and Fatmaboo is evidenced by the deed, Ex. C, executed on the 25th November 1887 by the latter, relinquishing all her claims of inheritance upon the former, in consideration of receiving from him Rs. 5,000. There is no dispute as to the execution of this document by Fatmaboo. It is also admitted that it was never acted upon but was returned to Fatmaboo. The first defendant's statement that as provided in this deed Fatmaboo received Rs. 500 in the shape of gold bangles is not entitled to any weight. The entry as to the gold bangles (Ex. 21) shows that it had been given five months before- on the 27th June 1887-just at the time of the betrothal of his daughter to Fatmaboo's son.

11. Ex. C was followed by another document, Ex. E, in February 1888) executed by Fatmaboo in favour of the first defendant. By that she agreed to sell her right of inheritance to the property of her father, then alive, to the first defendant for Rs. 5,000. The execution of this document by Fatmaboo is admitted. The first defendant states that it was cancelled by the deed, Ex. F, which has given rise to the present litigation.

12. The evidence of these transactions beginning with the will, Ex. 20, and ending with the agreement, Ex. E, is relevant to this suit so far that it shows that from about 1880 Kallimuddin had Conceived the desire of making some arrangement in his life-time by which he could get rid of Fatmaboo's chance of succeeding to his property as one of his heirs and leave it to the first defendant on his death. It appears from those transactions that he was satisfied with none of them. Hence the arrangement evidenced by the deed, Ex. F.

13. At the date of this deed, Ex. F, Fatmaboo was at least thirty years of age. She was then a married lady, having been married some years before and lived with her husband at Cambay. She had a son, who is plaintiff No. 1 in the present Suit. The evidence recorded in this case and her hand-writing on Exs. C, E and F show that she was not an illiterate lady but that she could read and write Gujerati pretty fairly. The facts so far are not contested; but the plaintiff's case as to undue influence rests upon the following allegations:-(1) that the transaction evidenced by Ex. F was between a daughter and her father; (2) that Fatmaboo was apardanashin; (3) that the deed was not explained to her; (4) that she did not understand the legal nature and effect of her act; (5) that She executed the deed without any independent legal advice and without having all the materials regarding the value of her father's property put before her; and (6) that the consideration moving from the father was grossly inadequate. 14. As to the first of these points, though the transaction was between a daughter and her father, the relation between them at or shortly before the execution of the document was not such as to raise a presumption that the father had any influence over the daughter or that he stood in any fiduciary capacity towards her. 'The influence' of a parent over his child, 'is deemed to exist, in the language of the cases, until the child becomes emancipated,' (See Ashburner on Equity, page 415). Fatmaboohad been married several years before the date of Ex. F; she lived with and was maintained by her husband; and the father had no control over, or responsibility towards, her. Her husband has in his evidence admitted that when she executed the document, Ex. C, he did not ask her about it when she informed him of its execution, because he knew that 'she could manage her household as well as other affairs. '

14. That she was a pardanashin lady I have no doubt. Witnesses have been examined on either side on this point. Those of the plaintiffs endeavour to make out that she was a strict pardanashin, who never appeared before males without a veil on her face; those of the defendants, that she had no parda. But, substantially, the evidence of both sets of witnesses agrees and the effect of it is decidedly in favour of the view that the parda system prevails among the ladies of the Borah community to which Fatmaboo belonged; that in Horwad, where the Borahs have their quarters at Cambay, the ladies move about with faces uncovered; that they sometimes appear unveiled before strangers in matters of business provided their fathers or husbands or brothers or some other near adult male relative is present. Now the law requires that in the case of deeds taken from a lady of this class the Court must be careful to see 'that the party executing them has been a free agent and duly informed of what she was about'; that the deed was explained to and understood by her. See Sudisht Lal v. Mussummat Sheobarat Koer and Shambati Koeri v. Jago Bibi ILR (1902) Cal. 749. Here we have the evidence of two witnesses-Mohanlal and Kikabhoy Hasanalli-who depose that the deed was explained to the lady. Their evidence is indeed not free, from defects; but it must be rememberd that they are speaking to events which occurred ten years ago. The deed, Ex. F, is drawn up in the Gujerati language and;, judging from the fact that Fatmaboo could write fairly good Gujerati, it is reasonable to infer that she had no difficulty in understanding the terms of the document and realising its effect. It is said that she had no independent legal advice at or shortly before the execution of the document. The evidence however, shows that a vakil by name Ohunilal drafted it that he had a hand in settling the amount in favour of Fatmaboo and that it was in his presence that the document was executed. I am satisfied upon the evidence that he acted as her vakil and also as that of her father. The probabilities are that he was employed by Kallimuddin; but at this distance of time, when all the three are dead, it would be unfair to assume or presume that Chunilal acted solely as Kallimuddin's vakil-especially when we have this undoubted fact, to be presently dealt with at greater length, that Fatmaboo never complained during her life-time that she had executed this deed without the benefit of independent advice. The evidence also shows that nothing was said at the execution as to the value of Kallimuddin's property : but these infirmities again in the evidence for the defendants must be weighed along with the fact that Kallimuddin and Fatmaboo, and Chunilal are dead, and that we do not know what had been discussed between them before Ex. F was executed. And the subsequent conduct of Fatmaboo bears stronger testimony in favour of the defendant's case and is absolutely inconsistent with any undue influence having been exercised over her as to the execution of this document.

15. Immediately after Ex. F had been executed, a copy of it, (Ex. I) was handed over to Fatmaboo. Under the document she became entitled to receive Rs. 250 annually as interest on the principal sum of Rs. 9,000 mentioned in Ex. F. For four years no interest was paid to her. On the 6th of December 1899 she served a notice (Ex. No. 3) upon her father, demanding the four years' interest due to her under the deed. In that letter, which her husband; the second plaintiff, has admitted to be in the handwriting of her son, the first plaintiff Shumsuddin, she insists in distinct terms upon her rights under Ex. F. Her husband states that this letter must have been composed by a vakil; and the language of the notice shows that it must have been drafted by a lawyer. Shumsuddin, though present in Court, has not ventured to go into the witness-box and deny that a lawyer had been consulted as to this notice and had drawn it up. It must be presumed under these circumstances that the lawyer had been placed in possession of all the facts before he drafted the notice; that nothing was said to him about undue influence and he saw nothing to suggest it. And in accordance with the demand contained in this notice Ex. 3, Fatmaboo was paid Rs. 1,000 being the four years' interest due under Ex. F. In April 1900 Kallimuddin died. During his life-time there was no suggestion that Ex. F was voidable on the ground of undue influence.

16. After his death, Fatmaboo addressed on the 3rd of June 1901 a letter (Ex. 4) to the first defendant demanding Rs. 400 on account of interest. The first defendant states that this sum was not paid because so much was not due; but that she had received Rs. 1360 odd on the 12th of January 1901; Rs. 800 on the 31st of January 1001; Rs. 1,000 on the 15th March 1901; and on the 24th of June 1901 she was paid Rs. 291. These payments, says her husband) were all made not on account of anything due under Ex. F or out of the principal sum of Rs. 9,000 mentioned in it but because of a verbal promise given to her by her father that he would pay these sums for the marriage expenses of her son. But the husband's authority for that statement is, according to him, Fatmaboo herself: and it is improbable that Fatmaboo could have told him anything of the kind. The story about the father's promise rests solely upon the hearsay evidence of this man and Mr. Inverarity for the plaintiffs has not contended that it must be true. He has admitted for his clients the several payments to Fatmaboo in virtue of Ex. F. The payments are acknowledged by her in Ex. 2, the account opened by Kallimuddin in her name soon after the execution of Ex. 2 and appear below the payment of Rs. 1000 on the 6th of December 1899 which admittedly was under Ex. F. She has by her own hand in well-written Gujerati signed receipts for them and that fact is admitted.

17. Then there is the further correspondence between the parties (see Exs. 5, 6, 25, and 7) which shows that Fatmaboo firmly stood on her rights under Ex. F. Ex. 28 shows that a statement of account under Ex. F was sent to her. On the 12th of May 1902 the first defendant drew a hundi (Ex. 9) for Rs. 1,000 in Fatmaboo's favour and the receipt of that amount is acknowledged by her in her own hand-writing on the back of the hundi. The hundi in so many words mentions that the amount was paid in virtue of Rs. 9,000 under Ex. F. The circumstances under which this hundi was drawn and the amount was paid to her are detailed by the first defendant in his evidence. He had gone to Cambay for the pregnancy ceremony of his daughter, who was Fatmaboo's daughter-in-law. On the day of the ceremony Fatmaboo locked the girl inside her own house bcause the first defendant would not pay her the sum she demanded under Ex. F. The first defendant would not pay because the terms of Ex. F did not authorize him to pay anything out of the principal of Rs. 9,000 and that was what she wanted. The first defendant with two friends, Kikabhoy Shumsuddin and Yusufally Kikabhoy, went to Fatmaboo to expostulate with her and upon the interven-tion of those friends, Fatmaboo released the girl after receiving a promise from the first defendant to pay her Rs. 1000 out of the sum mentioned in Ex. F. Fatmaboo's husband denies that his daughter-in-law was locked in by Fatmaboo but he admits that the hundi of Rs. 1,000 was drawn by the first defendant in consequence of the intervention of Kikabhoy Shumsooddin and Yusufally Kikabhoy. That intervention could only have been due to some trouble created by Fatmaboo and the fact that the trouble arose just on the day of her daughter-in-law's pregnancy ceremony makes it very probable that she had locked the daughter-in-law in to coerce the first defendant into paying her out of the sum of Rs. 9,000 what she desired. I accept the first defendant's version as true. Again, on the 3rd of September 1903, Fatmaboo wrote a letter (Ex. 10) to the first defendant demanding Rs. 400 on account of interest on the sum of Rs. 9,000 under Ex. F. Next we have her solicitors, Messrs. Bhaishanker, Kanga and Girdharlal, addressing on the 2nd of June 1904 a notice (Ex.XI) on her behalf to the first defendant asserting her rights under Ex. F and demanding payment of interest accordingly. There is not a word there about undue influence, though it is to be presumed that she had placed her case into the hands of her lawyers and the notice was sent on her behalf and under her instructions. Finally, Fatmaboo filed the present suit. In her plaint no plea of undue influence was so much as even hinted at. She repudiated the deed on the sole ground that, not being registered, it was inadmissible in evidence against and not binding upon her. She died on the 21st of April 1905. Her son and husband were substituted in her place as her heirs and legal representatives. And after they had been defeated in another suit on the question of the registration of the deed and when this suit came on for hearing before me in August 1905 her counsel for the first time asked for leave to amend the plaint by inserting the plea of undue influence.

18. It is perfectly clear to my mind that Fatmaboo during her life-time would not have affirmed by her letters and conduct her rights under Ex. F if any undue influence had been exercised over her in regard to the execution of that document. Her first notice in December 1899 was drafted by a lawyer ; her notice (Ex. XI) was given for her by her solicitors: her plaint was drawn up by trained lawyers. She received payments several times under Ex. F. These facts with the evidence as to the circumstances attendant upon the actual execution of Ex. F satisfy me that she was a free agent when she executed that deed, that she knew perfectly well what she was about. Her husband who knew all about the deed and the payments made to her has now given evidence which I decline to believe where it conflicts with the defendant's case. He has professed ignorance of facts which he must have known. His son, the first plaintiff, who wrote the letters for Fatmaboo, has not ventured to go into the witness-box though he was throughout the trial sitting in Court and instructing his solicitors and counsel. The parties are Borahs-a community known for its shrewdness and sagacity. If Fatmaboo had been unduly influenced in executing Ex. F, it is strange that neither her husband nor her son nor she was able to realise it for full ten years; that during eight years she went on treating it as a perfectly valid deed and received payments under it.

19. It was urged that there were no materials put before Fatmaboo as to the value of her father's property. Evidence has been given for the plaintiffs to show that that property was at Kallimuddin's death worth at least a lac and a half. On the other hand, the defendants have given evidence to show that it was then worth not more than a lac and a little over. But the evidence on both sides is of such a character as to make it difficult for me to fix the precise value of the property. In such a matter the truth must lie somewhere between the two, and I think it was worth a lac and twenty-five thousand rupees, roughly estimated. But assuming that it was, at the date of Kallimuddin's death, worth the amount fixed by the evidence adduced for the plaintiffs, in considering the question whether the consideration was inadequate so as to raise the presumption of undue influence, regard must be had also to the state of things as they existed at the time of the execution of the deed. As observed by the Judicial Committee of the Privy Council in Ganga Bahsh v. Jagat Bahadur Singh ILR (1895) Cal. 15 'Whether the transaction was one that should be set aside as inequitable would depend upon the circumstances at the time when it was made, not upon subsequent events.' To the same effect are the observations of Tindal C.J. in Rannie v. Irvine: (1844) 7 M. & G. 969 'If the contract is a reasonable one at the time it was entered into, we are not bound to look out for improbable and extravagant contingencies in order to make it void'. At the date of the execution of the deed, Fatmaboo had been married to a man, who, upon his own showing, owned a house which brought no income, who had done no business on a large scale, and who had given up such small business as he had done ten years previously. To Fatmaboo any immediate help from the father under such circumstances in 1895 was of greater moment than living on the mere expectation or chance of inheriting any portion of her father's property-an expectation or chance liable to be defeated at any moment by the father selling away the property or diminished by his getting more children. For a chance she was securing a certainty. Looked at in that light, it can hardly be said that the consideration she received under the deed was so inadequate as to strike one as unconscionable or suggest unfairness. It is improbable that Fatmaboo did not know how much property her father possessed. From the fact that she locked in her daughter-in-law and compelled the first defendant to pay her Rs. 1,000 in virtue of Ex. F; from the tone of her letters to him, and from the evidence of Damodherdas, whom I regard as an absolutely reliable and respectable witness, she appears to have been a woman of spirit with some business capacity. Is it likely that she would not know how rich her father was- that her husband would not know it? Having regard to all these considerations and the evidence oral and documentary I have arrived at the conclusion that Fatmaboo executed the document as a free agent, that she well knew what she was doing and that no undue influence was exercised upon her. The plea of undue influence is, in my opinion, a pure afterthought on the part of Fatmaboo's husband and son.

20. But it is urged that even if Ex. F is a valid and equitable transaction, the plaintiffs have a right to treat it as rescinded and fall back upon Fatmaboo's original right to inherit her father's property because both the father and the first defendant repudiated it and acted contrary to its terms. In support of this contention the wakfnama executed by Kallimudin (Ex. A 17) and the letter of the first defendant Ex. 27 are relied upon. This would have been a valid contention if Fatmaboo, the moment she came to know of the wakfnama and after she had received the letter Ex. 27, had treated herself as discharged from Ex. F. But instead of doing that she went on insisting upon her rights under Ex. F and receiving payments under and in virtue of it. And she received the sum of Rs. 1,000 on the 12th of May 1902 (see Ex. 9) whereas Ex. 27 had been written on the 5th of March 1902. Under these circumstances she could not rely upon the repudiation of Ex. F by the first defendant after she had compelled him to act upon it and when she had deliberately acted upon it herself after the right to inherit her father's property had accrued to her in 1900.

21. Upon these findings it becomes unnecessary to discuss the question of limitation raised in the case as barring the plaintiff's suit.

22. I dismiss the suit with costs including those of the Advocate General.


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