Lawrence Jenkins, K.C.I.E., C.J.
1. Before us the suit has been treated as one brought by Fatamboo to establish her right as one of the heirs of her deceased father Kalimudin Amirudin, who died on the 25th of June 1900.
2. Kalimudin's heirs at his death were his two sons, the first and second defendants and his daughter, the original plaintiff Fatamboo. He left no will, so that if the case rested there, Fatamboo's claim would be unanswerable. But it is pleaded that by a document of the 25th of October 1895, Ext. F, her rights as one of her father's heirs were extinguished, and the only question argued before us has been as to the soundness of this plea.
3. Exhibit F is addressed to Kalimudin, and it runs as follows :-
To Mulla Kalimudin Amirudin an inhabitant of Horwad at Cambay...Written by Bai Fatambu Kalimudin wife of Grulam Husen Abdulaly, an inhabitant of the aforesaid place. To wit. You are my respected father. You have two sons besides myself. And as to whatever immovcable and moveable properties (and) house-hold furniture belonging to you there are at Cambay, Bombay and Bakha and Bassein and other places, and as to what property there may be at your death after additions and deductions shall have been hereafter made to and from the same during your lifetime, thereto I have a right by way of inheritance according to the Mahomedan Law. And my mother had directed (you), to give (me) ornaments. For all (my) rights including the said right, you, having agreed by the agreement (herein) below mentioned to pay me Rs. 9000 namely nine thousand of Bombay currency have credited (the same) to my account from this day. Consequently, I having in consideration of the said sum, relinquished all my rights and claims, have given this release in writing and have agreed as follows:-As to any property (belonging to you) that there may be either in (this) country or in any other country, (i.e.) wherever (the same be situate) at your death, I have no right or claim whatever thereto. Only the above mentioned amount which has been fixed in consideration of all my rights 1 have caused to be credited (to me). I am to receive only that (amount) by the undermentioned agreement.
1 The moneys mentioned in this Release, have been caused to be credited to my account, at your place. In consideration of the interest thereon, I am, or my children that there may be, are to receive Rs. 250 namely Rupees two hundred and fifty of Bombay currency every year up to your lifetime. (I or my children) have no right to receive the principal amount during your life time but when at your death, I or my children may demand the principal amount for the purpose of purchasing a property yielding income or of depositing the same at interest at the place of some one, at that time your heirs, whoever they may be are bound to pay the same. As long as we do not withdraw the said money so long we are, after your death, to receive interest at the rate of eight annas.
2 On your death taking place we may purchase a property yielding income or we may deposit the principal moneys either with your heirs or at some other sahukars (i.e. a banker's). I or my children are to use the income or the interest in respect of the said amount and I or my heirs can withdraw (moneys) out of principal amount for urgent purposes (but) we cannot make an improper use of the same. And if I or my children or any one of their progeny be not alive, and if anything out of the property mentioned in this release should have remained duo to us, (then) the ownership thereof belongs to your heirs.
3 Prior to this release, Abdul Hussein had taken from me in writing a document in respect of my right. The same is cancelled and (I) have given this release in writing Consequently the responsibility in respect of the said document is on your head. And in future even if I should not be living at the time of your death, you or your heirs are bound to pay the abovementioned sum to my children.
4 You can give your heirs your property including the charge in respect of the aforesaid moneys mentioned in (this) Release that is to say those (persons) who may become your heirs are to enjoy your property after paying off the incumbrance in respect of the abovementioned sum, that is to say, your heirs or the persons taking your property are bound to pay the abovementioned sum.
I have given this release in writing of my free will and pleasure (and) while in a conscious state, and under such a distinct agreement that any contention on my part or on the part of my children on the score of (your) giving your other heir (your) property except the abovementioned sum or on the score of (their) getting (the same) shall not prevail. The same is agreed to and approved of by me and my heirs. The 7th of Kartak Sud of Samvat 1952, Friday the 25th day of October in the Christian year, 1895.
4. The document was signed by Fatamboo alone and the place of execution was Cambay.
5. There is now annexed to it a schedule of property, but that was subsequently added without Fatamboo's authority or assent.
6. In the plaint as originally framed it was contended that as the document was not registered it could not be used against Fatamboo, but as the result of a decision in another suit this contention was abandoned and the plaint was amended by the addition of para 4 (a) which runs as follows :-
The plaintiffs say that the said document of the 25th of October 1895 was treated by the said Fatamboo when she filed this suit both as void in law ab initio and as voidable by her by reason of undue influence. The document was inoperative both according to Mahomedan Law and otherwise and according to the law of British India, since by it the said Fatamboo purported to release and give up a mere expectancy. The tame was also voidable by her by reason of undue influence inasmuch as the consideration mentioned therein was so grossly inadequate as to be unconscionable having regard to the value of the property of the said Kalimudin and inasmuch as the act of obtaining the benefit if any of the said document from his daughter Fatamboo who was an ignorant Mohimodan Pardanashin female was a misuse of his parental authority by the said Kalimudin.
7. In the end the parties went to trial on the twenty-three issues sot forth at pp. 30 to 33 of the printed appeal book, and Chandavarkar J. dismissed the suit with costs.
8. From this decree the present appeal has been preferred by Samssudin Goolatn Husein and Goolam Husein Abdulali who on Fatamboo's death were substituted as parties in her place.
9. At the date of Ex. F Fatamboo had no vested interest in her father's estate; all she had was the chance as an heir apparent of succeeding to a share in it.
10. If that chance is not bound by what she has done, then on her father's death she succeeded to that share; and if on his death she did not so succeed, that can only be because in her father's life she by Ex. F bound that chance and thus extinguished her right of succession on its accrual.
11. The case has been argued throughout as though it were governed by the law of British India, and it is therefore on that basis that I propose to proceed.
12. By the Transfer of Property Act it is provided that the chance of an heir apparent succeeding to an estate cannot be ' transferred (Section 6 (a)). It is true that in Section 2(d) it is enacted that nothing in the second chapter of the Act shall be deemed to affect any rule of Muhammadan Law, but so far from there being any rule that conflicts with this provision, such a transfer would seem to be opposed to the principles of Muhammadan Law (see the opinion of the majority of the Law Officers in Mussummaut Khanum Jan v. Mussummaut Jan Beebee (1827) 4 S.D.A. 210 and Abdul Walid Khan v. Mussumat Nuran Bibi (1885) 12 I.A. 91 .
13. And in the absence of clear proof to the contrary I certainly am not prepared to hold that there is any rule of Muhammadan law that sanctions the transfer of an expectancy.
14. By parity of reasoning I come to the further conclusion that there could not be a release of such a chance (compare Kemp v. Kelsey pree. Chan. 545).
15. But if the chance of an heir apparent is neither transferable nor releasable according to Muhammadan law, then, as it seems to me, it is only by an application of the principle that equity considers that done which ought to be done that such a chance can, if at all, be bound. (see Ives v. Metcalfe (1737) I Atk. 64; Heron v. Heron (1741) 2 Atk. 160 .
16. But is that principle applicable in the circumstances of this case? Clearly not if it would defeat the provisions of the law. (See the Contract Act Section 23.)
17. The provision which prohibits the transfer of the chance of an heir-apparent succeeding to an estate is contained in Chapter II of the Transfer of Property Act, and the heading of that chapter is 'Of Transfers of Property by Act of parties,' and the heading of that division of the chapter, in which the prohibition is contained, is 'Transfer of Property whether moveable or immoveable.'
18. Section 5, the first section of the chapter, provides that
In the following sections 'transfer of property' means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and 'to transfer property ' is to perform such act.
19. There is no definition in the Act of 'convey' or of ' property,' but it is to be noticed that a transfer means a convey-ance of property not only in present, but also in future.
20. Then we come to Section 6 which provides that property of any kind may be transferred except as otherwise provided by the Act, and the first exception named is the chance of an heir apparent.
21. But this implies that but for the exception the chance of an heir-apparent would be property that might be transferred under the Act. An English lawyer would not regard the chance as property or as assignable at law, but it may be that the Indian legislature had regard to the fact that such a chance is frequently described as assignable, and in illustration of this I may refer to Ghauncey v. Graydon (1743) 2 Atk. 616 where it is said, 'Though in law a possibility is not assignable yet in equity where it is done for a valuable consideration it has been held to be assignable'.
22. Future property in general is not expressly excepted from the operation of the Act, but only that class of future property which is described in Clause (a) of Section 6. And looking at the whole scope of the Act I see no reason to suppose that it was intended to establish and perpetuate the distinction between that which according to the phraseology of English lawyers is assignable in law and that which is assignable in equity. If this be so, and it was the intention of the legislature that the chance of an heir apparent should not be transferable, the exception is not only justified but necessary. But this exception cannot be by reason of the future character of this chance ; it must be because it was thought undesirable that it should be capable of transfer. There is nothing fantastic in this : though future property could be bound in equity, yet we find Lord Eldon in Carleton v. Leighton (1805) 3 Mer. 667 saying that the expectancy of an heir apparent was not capable of being made the subject of assignment.
23. Having regard then to the fact that the chance of an heir apparent is thus specially excepted from the category of transferable properties I am of opinion that the principle Mat equity considers that done which ought to be done has no application, and that we ought not to treat Ext. F as having extinguished the right of succession that Fatatnboo admittedly possessed apart from that document.
24. Though there is no direct authority that a Muhammadan cannot bind his chance as an heir apparent, this view is supported by what has been said and decided in reference to Hindu reversioners who occupy an analogous position. Thus in Sham Sunder Lal v. Achhan Kunwar (1898) 25 I.A. 183 Lord Davey in delivering the judgment of the Judicial Committee says: ' What was the position of the parties at the respective dates of the execution of these two bonds At the date of the bond of 1877 Hulas Kuar, as the heir of Khairati Lal, was the owner of his estate, but with a restricted power of alienation. Achhan Kunwar was next in succession, and would, if she survived her mother, become her father's heir, and take the estate subject to the same restriction. Enayet Singh was one of the two male heirs next in succession to the restricted estate who would be full owners in the event of their surviving their grandmother and mother. Enajetwas, moreover, a minor. At the date of the bond of 1881 Achhan Kunwar was owner of the property for a daughter's estate Avith restricted power of alienation, and Enayet Singh was one of the heirs apparent. At both dates Enayet Singh was living in his father's house and dependent upon him. In 1877 neither Achhan Kunwar nor Enayet Singh (even if he had been of age) could by Hindu law make a disposition of or bind their expectant interests, nor does the deed apply to any but rights in possession; and in 1881 Enayet Singh was equally incompetent to do so, though the deed purports to bind future rights. '
25. Here then we have Lord Davey's opinion that a Hindu re-versioner not only could not dispose of, but could not bind his expectant rights. It is said that this is only a dictum, but it is the dictum of the highest judicial authority, and in at least two later cases has effect been given to this expression of opinion. (Nund Kishore Lal v. Ranee Ram Tewary ILR (1902) Cal. 355 and Manickam Pillai v. Rarnalinga Pillai ILR (1905) Mad. 120. While in the earlier case of Balkrishna Trimbak Tendulkar v. Savitribai ILR (1878) 3 Bom. 54 it was held by a Division Bench of this Court that though a Hindu for valuable consideration relinquished his share in the property of his adoptive father and agreed not to claim it in that father's lifetime, still on the death of the adoptive father intestate he was entitled to claim by inheritance in priority to the widow.
26. But there is in my opinion another reason why the principle that the Court regards that as done which ought to be done, cannot be applied in the circumstances of this case.
27. It is necessary to consider what was the position of the parties to the transaction evidenced by the document of the 25th October 1895.
28. Fatamboo was a pardanashin lady; she was an expectant heir dealing with her chance of succession ; and the person with whom she was so dealing was her father.
29. But in the case of deeds executed by pardanashin ladies it is requisite that those who rely on them should satisfy the Court that they had been explained to and understood by those who executed them : Sudisht Lal v. Mussummat Sheobarat Koer (1881) 8 I.A. 39 , Shambati Koeri v. Jago Bibi ILR (1902) Cal. 749.
30. What direct evidence is there that Ext. F was so explained and understood? Ghandavarkar J. says that both Mohanlal and Kikabhai depose that it was explained; but this is admittedly erroneous as to Kikabhai.
31. What then is the evidence of Mohanlal He is a copying clerk in the service of Maganlal Dulabhdas & Co. who carry on business as Vakils at Cambay. His age in February 1906 was somewhere between thirty and thirty three and his pay Rs. 150 a year. It was he who wrote out the draft of Ex. F and the document itself.
32. Though his employer Chunilal was there, it was, according to his evidence, he, Mohanlal, who read over and explained the draft to Fatamboo. Ho says that he also read over the fair copy.
33. Nowhere does he say that it was explained to Fatamboo by Chunilal, the Vakil employed in the transaction, or by any one else. How far then is Mohanlal's evidence deserving of credence, and how far does it establish such an explanation as the law requires
34. That Mohanlal is not a witness on whom implicit reliance can be placed is apparent from the conflict between his deposition in suit 460 of 1904 Ext. A 19 and his evidence in this case as to the pressure of Abdul Hoosein. This conflict can hardly be attributed to oversight, for in the earlier deposition he not merley speaks to Abdul's presence but goes on to explain how it was he did not sign. While in the second he positively denies his presence. And if the document was explained is it likely that this youthful copying clerk, as he then was, would have been selected for the responsible work of explanation I think not.
35. No doubt it is some time since Ext. F was executed, but it cannot be said that all sources of information have been exhausted, for Rahmatally, who was present and attested has not been called, though he was summoned as a witness for the defence and was actually in Court. It is said that he was not called, because he was friendly to Fatamboo; but there is no evidence of this ; and even if it be so, I do not think we should assume that his friendliness would prevent his speaking truthfully.
1. seems to have thought that the evidence justifies the conclusion that Fatamboo had independent legal advice at or shortly before the execution of the document for he was satisfied that Chunilal acted as her Vakil as well as her father's.
2. But Mohanlal's evidence is directly opposed to this view and his is the only direct evidence on the point-as he declares that 'for this transaction Chunilal was Kalimuddin's Vakil. Before that he had been the Vakil of both Kalimuddin and Fatamboo. Chunilal was Kalimuddin's general Vakil.'
3. This is how the evidence stands as to the explanation of Ext. F, and after duly weighing it and keeping in mind the circumstances to which I have alluded it fails to convince me that Ext. F was duly explained.
4. But after all explanation is only material as a means of ensuring that the transaction should be understood. So it is necessary to consider whether the circumstances appearing on the record show that Fatmaboo did actually understand Ex. F.
5. As establishing the affirmative of this, Mr. Strangman has relied on the fact that this was not an isolated transaction, but had been preceded by other arrangements designed to extinguish Fatmaboo's right of succession to her father, and also on the fact that she claimed and received substantial benefits under the document.
6. It is true that there had been earlier arrangements, but I cannot from this draw an inference unfavourable to the plaintiffs. On the contrary it shows a settled scheme on Kali-mudin's part to obtain from Fatamboo a renunciation of her right of succession, and when it is borne in mind that this dates back to the time when she was still a minor and her father manifestly was in a position to dominate her will, the inference that suggests itself is that this last attempt too may have been the result of similar influences.
7. But the strongest point in the defendant's favour is that Fatamboo has received benefits that are in accordance with the provisions contained in Ext. F.
8. Before any conclusion can be drawn from the facts of this part of the case, they require close examination.
9. Though in Ext. F it is recited that Rs. 9000 had been credited to her account and it was agreed that she was to receive Rs. 250 a year, no such credit was entered nor was she paid this Rs. 250 for over four years.
10. On the 6th of December 1899, no doubt, a letter Ext. No. 3 was written in her name demanding payment of the arrears. But it is to be noticed that no reference is there made to Ext. F, on the contrary her right to the Rs. 9000 is referred to the fact that Kalimuddin is her 'respected father.' And if the demand made by the letter be examined, it will be seen that it is in excess of her rights under Ext. F, for it is said 'Therefore it is my intention also not to let the principal sum remain (deposited) at your place so you will do me the favour to pay off that also.' But under Ext. F she had no right to demand the Rs. 9000 during her father's lifetime, and in any event her right to the Rs. 9000 was not absolute but was expressed to be conditional on her or her descendants surviving her father.
11. Can it then be said that Ext. No. 3 shows that she understood her position under Ext. F I think not.
12. The interest demanded was no doubt paid and that is a fact in the defendant's favour.
13. In addition to this reliance is placed by the defendants on the subsequent payments that were made and the correspondence that passed.
14. As to the payments there is no question, but it is significant that throughout no mention is made by Fatamboo of Ext. F.
15. This correspondence opens with Ext. No. 4, a letter from Fatamboo to Abdul Hoosein of the 3rd of June 1901, in which she intimates her intention of drawing a hundi for Rs. 400 on account of interest, which she asks him to accept.
16. By Ext. 5, which is dated the 23rd of November 1901, Fa-tamboo says she intends to draw a hundi for Rs. 200. By his reply Ext. 24 dated the 24th of November 1901 Abdul requests Fatamboo not to draw this hundi for the present.
17. On the 26th of November Patamboo writes that she is in want of money and states that she will draw the hundi.
18. The next day Abdul replied enclosing an order to Parikh Damodardas Mathuradas for Rs. 200.
19. On the 3rd of March 1902 Patamboo writes to Abdul that she required Rs. 2000 for ornaments, clothes and expenses (Ext. No. 7).
20. On the 5th of the same month Abdul sends his reply, Ext. No. 27 stating in effect that Kalimuddin had made a Wakf which cancelled Fatamboo's right to the principal of the Rs. 6000 the balance of the Rs. 9000 remaining unpaid after deducting the Rs. 3000 already paid. At the same time to preserve peace and harmony he expresses his willingness to pay the Rs. 6000 if her Vakil convinces his that he will not thereby incur any risk.
21. This elicits a protest against Abdul's statement as to the Rs. 3000 for on the 17th of March a letter Ext. No. 8 is written on her behalf stating in effect that the Rs. 3000 had been given her in accordance with the order of her father on the occasion of the marriage of her son to Abdul's daughter, and not out of the Rs. 9000.
23. On the 26th of March Abdul again writes (Ext. No. 28) expressing his willingness to pay over the balance if it could be shown that he could do it with safety.
24. On the 12th of May Abdul writes an order on Parikh Damodardas Mathuradas (Ext. No. 9) to pay Fatamboo Rs.1000 stating therein that by virtue of the release an account of Rs. 9000 had been opened. Patamboo's receipt is endorsed on the back.
25. On the 3rd of September 1903 (Ext. No. 10) Patamboo writes that she was going to draw a hundi for Rs. 400 and on the back of this document is endorsed Abdul's reply of the 5th of September in which he states that by virtue of the release out of the Rs. 9000 she had received Rs. 4000.
26. The original of this reply is not produced, but Abdul has proved that the endorsement is a true copy and it is in the circumstances admissible as secondary evidence.
27. We find therefore that at no time does Fatamboo mention Ext. F though a release is twice mentioned by Abdul as the basis of this claim for Rs. 9000.
28. This brings me to the letter, Ext. No. 11, written by Fatamboo's attorneys prior to suit in which they demand payment of interest; no reference however is made even here to Ext. F, and the claim is rested on a deed of Trust of the 9th of September 1897.
29. This deed calls for a word of explanation. It purports to be a Wakf'nama, and the suit as originally framed sought to have it construed and its trusts carried into effect.
30. By this deed it is expressly provided that neither Fatamboo nor her descendants shall be entitled to receive the sum of Rs. 9000 or any portion of it, but should only have a charge for the interest thereon.
31. In this suit all parties are agreed that this Wakfnama was inoperative, but still the fact remains that Kalimuddin did thereby attempt to deprive Patamboo and her descendants of their rights to the Rs. 9000, and after his death Abdul, as the correspondence shows (see Exts. Nos. 27 and 28) suggested that Patamboo's rights were thereby barred and merely expressed his willingness to pay the balance 'to preserve peace and harmony.'
32. And then as 1 have pointed out it was on this deed that Fatamboo's claim was ultimately rested.
33. Can it then be said when regard is had to the whole correspondence and the accompanying circumstances, that the deficiency in the evidence as to the explanation of Ext. F is supplied and that it is shown Fatamboo understood the transaction ?
34. I think not; for having regard to Fatamboo's status, the nature of the rights she purported to renounce, and the fact that the scheme originated with Kalimuddin and that she had no independent advice it ought to be shown beyond all reasonable doubt that she understood the transaction, and that, I think, has not been done.
35. The conclusion then to which I come is that though Fatamboo may have known that by Ext. F she purported to relinquish her rights as one of her father's heirs I am not convinced that she realised she had but a conditional right to the Rs. 9000 and so.it cannot (in my opinion)be said that the evidence shows she understood the transaction.
36. But the case does not rest there: it is not merely that Fatamboo is not shown to have understood the limitations on her right to the Rs. 9000. but there is absolutely no evidence that she had any idea of the value of that she was purporting to give up. We now know that the share coming to her under an intestacy is about Rs. 25000, and this as well as such claim (if any) as she might have to the ornaments mentioned in the release she purported to relinquish for a qualified right in Rs. 9000.
37. How far Kalimuddin was legally bound to observe the terms of the release has not been discussed before us, but this at any rate is clear that the document was not signed by him, and the terms of the Wakfnama suggest the inference that he regarded himself as still free to modify the terms of Ext. F in relation to the Rs. 9000.
38. Then again can it be said that the transaction was a prudent one It is true that, subject to the qualifications I have indicated, the Rs. 9000 was secured to Fatamboo or her descendants, but I am not convinced that the transaction was a provident one. Even according to Mohanlal it was Fatamboo's contention that she should receive 11 or 12 thousand Rupees, nor is there anything that suggests that she knew her right to the money should not be absolute.
39. In justification of the arrangement it is suggested that it probably was an object to Fatamboo to get an immediate income; but if that influenced her, the expectation was not realised, seeing that for over four years Kalimuddin paid her nothing by way of interest.
40. Then again I think this was eminently a case where Fatamboo should have had independent legal advice. This it is not shown she ever received.
41. That Fatamboo needed protection is shown by the fact that she actually signed a receipt endorsed on Ext. C to the effect that she had received Rs. 500, though that sum was never paid to her, and it is a matter exciting comment that such a receipt should have been taken from her.
42. Finally it cannot be disregarded that Ext. F originated with Kalimuddin, was prepared by Chunilal, his Vakil in the transaction, and was prompted by a determination evidently long formed that Fatamboo should not succeed to a share in Kalimudin's property as one of his heirs.
43. Having regard to all these facts I am of opinion that they afford an additional ground for holding that the principle that equity considers that done which ought to be done is not applicable in the circumstances of this case.
44. I have not overlooked the fact that Patamboo has received sums of money which may be attributed to Ext. F but it is conceded that they should be debited against her or her representatives. It is however urged that this does not take into account the fact that by Ext. F her right to the Rs. 9000 was converted into certainty. But if any further legal damage has been thereby suffered it can no doubt be, recovered, for in withholding the equitable principle, the relief (if any) in damages is untouched.
45. And this is the answer to the objection that it is too late now to have Ext. F set aside on the ground of undue influence. - In holding that Fatamboo's rights were not thereby extinguished we in no sense set aside the transaction: all we do is to say that in the circumstances, those that set up the release cannot claim that it secures to them the position that would flow from the principle that equity considers that done which ought to be done.
46. Ext. F still stands, and if it entitles Abdul to any relief beyond that which depends on the equitable principle, it is not affected by the conclusion to which I have come.
47. It follows then from what I have said that Ext. F is no bar to the plaintiff's claim that Kalimudin's property should be divided between them and the first and second defendants according to the provisions of Muhammadan law.
48. There is no dispute as to the shares in which the heirs inherited, but this Court has no jurisdiction to make any declaration in respect of the immoveable properties situated at Cambay.
49. We must therefore reverse the decree under appeal and direct that the case go back for determination on such of the issues not covered by this judgment as are still in contest between the parties.
50. The appellant's costs of this appeal must be borne by the respondents but the costs in the first Court will be reserved and dealt with by the Judge who tries the rest of the suit.