1. This is an appeal from a judgment and decree, dated January 30, 1917, of the High Court of Judicature for the North-Western Provinces at Allahabad, which reversed a judgment and decree of the Additional Subordinate Judge of Moradabad, dated August 12, 1915.
2. The suit was instituted by the appellant, as the sister's daughter of one Kunwar Randhir Singh Sahib, deceased, to recover from the respondent (who, as his surviving brother, was in possession of his estate) a one-twelfth share of that estate. To this one-twelfth share the appellant would be entitled to succeed under the provisions of the Indian Succession Act. This would be so, Kunwar Randhir Singh having died a Christian, and the Act accordingly regulating the succession to his estate. An argument will be hereafter noted which challenges this proposition and alleges that in the circumstances of Randhir and his family it must be concluded that the Indian Succession Act does not apply to his case, and that the succession to his property is governed by the Mitakshara law.
3. The defendants, however, substantially found their case upon the existence of a deed, dated April 29, 1912, whereby the plaintiff is alleged to have relinquished all her rights in respect of her inheritance. It is part of the plaint accordingly to have this deed declared invalid. Its annulment was decreed by the Subordinate Judge, but the High Court have upheld it.
4. [Their Lordships after considering the circumstances in which the deed of April 29, 1912, was signed by the appellant said :] The deed, in short, is a deed substantially without any consideration by a pardanishin donor of her entire property in favour of a donee who, or whose representatives, submit the prepared document to her and obtain within the parda her signature. It is the established law of India in these circumstances that the strongest and most satisfactory proof ought to be given by the person who claims under a sale or gift from them that the transaction was a real and bona fide one, and fully understood by the lady whose property is dealt with. The cases upon the subject were discussed and the law as thus cited was repeated in Sajjad Husain v. Wazir Ali Khan. (1912) 39 I.A. 156
5. When, however, the law is that the lady must fully understand the transaction, this is but a secondary way of saying that it is the obligation of the donee in any transaction proceeding from her to see that she does so understand it. The relations of parties demand that this duty be performed, and when Courts of law declare that the onus rests upon the donee of showing that he did so, that, of course, is founded upon the fundamental fact that it was his duty to do it. If accordingly this obligation thus arising out of the relations of the parties be not fulfilled, the case for rescission and consequent remedy is clear. These principles apply to the present suit.
6. [Their Lordships' judgment, after considering and rejecting the ground upon which the High Court (reversing the trial judge) had upheld the validity of the deed, continued as follows: It is only necessary in a few words to allude to an argument submitted to the Board by the learned counsel for the respondent, the object of which seemed to be to suggest that even accepting the view that the deceased was a Christian, still he had by his acts made such an indication as the law would respect, to the effect that his succession was not to be governed by the Indian Succession Act. Their Lordships can give no countenance to such a principle. It is unavailing to quote the cases of Abraham v. Abraham (1863) 9 M. I.A. 195 or Sri Gajapathi Radhika v. Sri Gajapathi Nilamani. (1870) 14 W.R. 33 These cases preceded the Indian Succession Act and cannot modify or interpret it.
7. By Section 2 of that Act it is enacted : 'Except as provided by this Act, or by any other law for the time being in force, the rules herein contained shall constitute the law of British India, applicable to all cases of in testate or testamentary succession.'
8. This is the general rule, and the exception which bears upon the present case is Section 331, which says that: The provisions of this Act shall not apply to intestate or testamentary succession to the property of any Hindu...If, accordingly, the late Randhir Singh had remained in or become a convert to Hinduism, the exception would apply.
9. The question accordingly is, Was the late owner of this estate, or was he not, a Hindu If he was, the Mitakshara law would apply. If he was a Christian the Indian Succession Act would apply. The matter has been fully investigated. Among other things, for instance, in the words of the Subordinate Judge: 'The plaintiff has proved the baptisms, marriage and burial certificates of the deceased vide evidence given by the Chaplains Father J. Chrysostom and Father Angelo and by F.O. Nell, barister-at-law. The above evidence proves beyond doubt that Kunwar Randhir Singh in his later portion of life was a Christian and died as a Christian.' It is unnecessary to dwell upon the subject. because in a former litigation the respondent himself admitted these facts.
10. But the argument is, that, notwithstanding this, the Hindu law of succession should apply to this deceased's estate. A situation of nothing but confusion could be thus produced. The plain law of the Indian Succession Act would be eviscerated, and in each case inquiry might have to be entered upon as to whether a deceased subject of the Crown wished or by his acts compelled that the law of the land should not apply to his case. A particular subject can settle that in India, as in other parts of the Empire, by exercising-whatever be hip religion-his power of testacy, and definitely declaring how he desires his affairs to be regulated so far as his own individual property is concerned. In this case Kunwar Randhir Singh did not do so, and it is not for a Court to enter upon an examination of his conduct so as to prevent the Indian law of intestate succession getting its full and proper application.
11. Their Lordships will humbly advise. His Majesty that the appeal should be allowed, that the judgment of the Subordinate Judge should be restored, and that the respondent should pay the costs of the appeal.