Basil Scott, Kt., C.J.
2. The first question is whether the plaintiff is the heir of Manjoola. That depends upon the question whether Manjoola was married by theasura form of marriage or by an approved form. If she was married by the asura form, then the plaintiff is her heir. It is held by both Courts that dej was paid on Manjoola's marriage, and that the defendant postponed that marriage because the dej had not been paid. They, therefore, came to the conclusion that the dej was paid to the defendant as a bride price. The marriage was, therefore, in the asura, form.
3. It has been held by the lower Courts that the appellant was in a fiduciary relation to his nieces. They were brought up in his house and acted under his influence. The Courts also held that the price paid under the sale-deed as a consideration for the transfer of the plaintiff and her sister's property to the defendant was inadequate.
4. Assuming the plaintiff is the heiress of Manjoola it is contended that claiming through Manjoola she has no right to exercise the option to avoid the deed as to one moiety of the , property since Manjula in her life-time did not exercise the option and a right dependent on the will of an individual is not transmissible to his heirs to exercise at their will and not that of the person through whom they claim.
5. The argument may be put thus :-
Under the Indian Contract Act all agreements fulfilling the conditions of Section 10 are contracts.
6. One of those conditions is free consent of competent parties. But the absence of free consent from causes specified in Section 14, namely, coercion, etc., does not prevent the agreement from being a contract. The contract only becomes voidable at the option of the party whose consent is caused (Sections 19 and 19A).
7. In dealing with performance of such contracts in Chap. IV, Section 64, the Act reserves no right expressly to the representative of the party whose unfree consent was obtained although Section 45 of the same Chapter provides for devolution of certain contractual rights where but for express provision the death of a joint promisee would bar such devolution.
8. Moreover Section 86 of the Indian Trusts Act which is in pari materia with Sections 19 and 19A of the Indian Contract Act is open to similar criticism since Sections 81 and 83 refer expressly to representatives, while Section 86 apparently only relates to the lifetime of a transferor.
9. Again Act XII of 1855, though it gives a right to representatives to sue for compensation for wrongs which have caused pecuniary loss to the estate of a deceased person, does not give any right of suit to avoid contracts for wrongful action.
10. The Probate and Administration Act, Section 88, gives the executor or administrator the same power to sue as the deceased in respect of all causes of action that survive the deceased. But it is contended that there is no cause of action till the person unduly influenced has indicated his election to avoid the contract.
11. This argument might be pertinent and require serious consideration if we were dealing with a case of a contract effected by undue influence in which the parties were not in a fiduciary relationn to each other and in which the influencing party had not acquired possession of property of the party influenced. When property has been acquired by a party by using for his own advantage his fiduciary position the case falls under Section 88 of the Indian Trusts Act, which runs as follows :-
Where a trustee, executor, partner, agent, director of a company, legal adviser, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such otherperson the advantage so gained.
12. This section embodies a principle acted on in many English cases. It is sufficient to mention Stump v. Gaby (1852) 2 De G.M. & G. 623 and Gresley v. Mousley (1859) 4 De G. & J. 78 where devisees of the party influenced were allowed to set aside conveyances of their testators to solicitors on the ground that the testator by reason of the breach of trust of his grantee still retained a devisable right to the property in equity.
13. In Stump v. Gaby (1852) 2 De G.M. & G. 623 it was said :-'I do not deny that a deed may be so fraudulent as to be set aside at law ; this, however, is not such a case; but I will assume that the conveyance might have been set aside in equity for fraud : what then is the interest of a party in an estate which he has conveyed to his attorney under circumstances which would give a right in this Court to have the conveyance set aside In the view of this Court he remains the owner, subject to the repayment of the money which has been advanced by the attorney, and the consequence is that he may devise the estate, not as a legal estate, but as an equitable estate, wholly irrespective of all question as to any rights of entry or action, leaving the conveyance to have its full operation at law, but looking at the equitable right to have it set aside in this Court. The testator therefore had a devisable interest. My strong impression is that this very point is concluded upon authority, but if not I am ready to make an authority on the present occasion and to decide that, assuming the conveyance to have been voidable, the grantor had an equitable estate which he might have devised, and that being so he has in the clearest terms devised the estate, and thereby prevented the descent to his heir-at-law. I give no opinion as to what would have been the case if he had not devised the estate.
14. Apparently this is the idea underlying suits by representatives such as Holman v. Loynes (1854) 4 De G. M. & . 270. and Wright v. Vander-plank (1856) 5 De G.M. & G. 133.
15. In such cases one comes very near treating the conveyances as void in equity and thus taking them in substance out of the range of voidable contracts.
16. The English Courts, however, have applied to them the tests applicable to cases of voidable contracts, such as that lapse of time without rescinding will furnish evidence that the party influenced has determined to affirm the contract though delay is not imputable against him till he has such knowledge as he was bound to avail himself of, the onus being on the other side to prove such knowledge and the time of its acquisition : see Leake on Contract, Part I, Chap. VI,Section II.
17. Since the facts of this case as found by the lower Courts clearly bring it within the scope of Section 88 of the Indian Trusts Act, we affirm the decree declaring the sale-deed to be null and void. We direct inquiry as to the amount of the consideration paid by the appellant in discharging the mortgages which were binding on the estate and that on the respondent paying within six months the sum which may be found due on such account the appellant do deliver to her possession of the property in suit.
18. The costs of this appeal and the costs in the lower Courts up to date to be paid by the appellant.