1. This appeal arises out of a suit instituted by Muhammad Husain Khan in order to recover one-ninth share in the property of his deceased brother, Sajjad Husain Khan, who died in the year 1934. The property in suit is described in four schedules. Schedule A includes immovable property which was admittedly owned by Sajjad Hussain Khan: Schedule B contains immovable property which was ostensibly owned by Mt. Sughra Bibi, the wife of Sajjad Husain Khan, but which, according to the plaintiff, was the property of Sajjad Husain Khan himself; the property in Schedule C is a scent manufactory at Jaunpur and the properties in Schedule D are certain articles of moveable property. When Sajjad Husain Khan died, he left surviving him his widow, Mt. Sughra Bibi, a son, Mustafa Husain Khan, three daughters and his father, Mira Bakhsh. The plaintiff rightly says that Mira Bakhsh was entitled under Mahomedan law to one-sixth of Sajjad Husain Khan's property. Mira Bakhsh died in the year 193G and the plaintiff claims that he inherited two-thirds of the property of Mira Bakhsh, the other third going to Mt. Wilayatan Bibi who was his sister and the sister of Sajjad Husain Khan. The plaintiff, therefore, maintains that he is entitled to one-ninth of the property left by Sajjad Husain Khan. The defendants alleged that Mira Bakhsh transferred his share in the properties mentioned in lists A, C and D to Mustafa Husain Khan, that half the property in list C had already been given by Sajjad Husain Khan to Mustafa Husain Khan before his death and that the property in list B was the property of Mt. Sughra Bibi and not of Sajjad Husain Khan. There was also one item of property in list B which was bought by Mt. Sughra Bibi at a sale in execution of a decree and it was alleged that the plaintiff was not entitled to claim this property because his suit in respect of it was barred under the provisions of Section 66, Civil P.C. The learned Judge held that Mira Bakhsh had made a gift of his share in the properties mentioned in lists A, C and D to Mustafa Husain Khan, that the property in list B belonged to Sajjad Husain Khan, and that the plaintiff was entitled to a share in it with the exception of the one small item which was purchased at a sale in execution of a decree. The learned Judge also held that half the property in list C had passed to Mustafa Husain Khan during the life-time of Sajjad Huaain Khan, but it does not seem that this is a question of any importance in the case. Muhammad Husain Khan has filed this appeal against the decision of the learned Judge of the Court below and there is a cross-appeal No. 164 of 1941 by Mustafa Husain Khan and ML Sughra Bibi about the property in list B, for which the learned Judge gave the plaintiff a decree. Mt. Wilayaten Bibi who was also a party to the suit has filed a cross-objection in Appeal No. 164 of 1941.
2. The main question which arises is whether Mira Bakhsh executed a valid deed of gift in favour of Mustafa Husain Khan. There is undoubtedly a document upon the record which was executed by him and duly registered. It is in the following terms:
I, Mira Bakhsh Khan, son of Hasan Khan, resident of mohalla Bixvi Khan, Jaunpur City, do declare as follows:
My eldest son, Sajjad Husain Khan, died on the 15th of March 1934, leaving the perfumery factory styled as Sajiad Husain Khan Abdul Karim Khan as well as other moveable property in cash and kind and cash certificates and household goods, etc., and the immovable property specified below, such as plots of land, houses and shops, etc., in which I have also a residuary share according to the Mahomedan law, which I do not want to take. The deceased, Sajjad Husain Khan, has left only one male issue, namely, Mustafa Husain Khan, and the entire property mentioned above is the self-acquired property of his father, Sajjad Husain Khan aforesaid, and I have not spent a single shell on it. I have become very old and there is no certainty of life. It is possible that after my death my other heirs may try to obtain my residuary share, that is, my share according to Mahomedan law from the property left by Sajjad Husain Khan deceased. Therefore, I, while in a sound state of body and mind, of my own will and accord, without compulsion or coercion, hereby relinquish my entire right and legal share in the estate of Sajjad Husain Khan deceased in favour of Mustafa Husain Khan, if lor my heirs bring any claim in future, the same shall be absolutely invalid and void. Hence I have executed these few presents by way of. a deed of relinquishment so that it may stand as authority and be of use when needed.
3. The question was raised in the Court below whether Mira Bakhsh was of a sound disposing mind and whether he had not been led to execute this document by the undue influence of his grandson, Mustafa Husain Khan, with whom he was living. The learned Judge found that Mira Bakhsh was of sound mind and that no undue influence was exercised upon him. The first question we have to decide is whether the learned Judge was right in these conclusions. We have heard the arguments of learned Counsel for the appellant and we see no reason for holding that the learned Judge was wrong. It is true that Mira Bakhsh was an old man and that he was partially blind, but the learned Judge has not accepted the evidence that his mind was affected in any way. We have been taken through the evidence and we see no reason to differ from the learned Judge who a had the opportunity of seeing the witnesses. The deed was registered before a Sub-Register to whom Mira Bakhsh Khan was personally known and it is impossible to believe that the Sub-Registrar would have registered the document if he had known that Mira Bakhsh Khan was not of sound mind. It appears from the endorsement of the Sub-Registrar that the execution of the deed was admitted by Mira Bakhsh Khan and as the Sub-Registrar made a note that the executants was then almost blind on account of old age, we are satisfied that he must have assured himself that Mira Bakhsh Khan, understood the contents of the document. As to the question of the exercise of undue influence there is really no evidence upon the record. We are asked to assume that there must have been undue influence from the fact that Mira Bakhsh was an old man, was nearly blind and was living with Mustafa Husain Khan. We do not think that! these circumstances justify any such inference. The result which Mira Bakhsh intended to produce was not one that was contrary to reason or good sense and we cannot assume merely from the fact of Mira Bakhsh's age and from the fact that ho was living with his grandson that he executed the document not of his free will but because Mustafa Husain Khan compelled or induced him to do so.
4. The next question is whether this document amounts to a deed of gift. Learned Counsel has suggested that it is a deed of relinquishment and that a deed of relinquishment cannot operate to transfer title. The second proposition may perhaps be considered as a mere truism implicit in the connotation of the term relinquishment; which may be defined as the giving up of a right, title or interest which thereafter disappears and which is not transferred to some other person. The question, however, is whether this deed can properly be described as a deed of relinquishment. The executant said that he had a residuary share in the property according to Mahomedan law, that he did not want to take it and consequently that he relinquished his right and legal share in favour of Mustafa Husain Khan. He did not purport merely to withdraw from the scene and to leave the property to pass to those who would have inherited it if he himself had not been alive at the death of Sajjad Husain Khan. In our judgment there can be no doubt that the terms of this deed are such that they were intended to transfer the right and share of Mira Bakhsh to Mustafa Husain Khan alone and not to Mustafa Husain Khan and his three sisters. As there was no consideration mentioned in the deed, we think this was undoubtedly a deed of gift and was not a deed of relinquishment although it was so described. It is scarcely necessary for us to say that the nature of a deed depends upon its terms and not upon the name that is applied to it by the person who executes it. As we are satisfied that this was a good deed of gift, we must hold that the plaintiff acquired no interest in the properties mentioned in lists A, C and D and as far as these properties are concerned the appeal must fail.
5. The question was raised by the appellant whether the learned Judge of the Court below was right in holding that the suit to recover the property purchased at the sale in execution of a decree by Mt. Sughra Bibi was correct. We are satisfied that the learned Judge was right upon this point. The plaintiff could succeed only on the allegation that Mt. Snghra Bibi purchased the property on behalf of Sajjad Husain Khan. He could not make that allegation and still succeed, because under Section 66, Civil P.C., no suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed, on the ground that the purchase was made on behalf of the plaintiff or on behalf of someone through whom the plaintiff claims. The plaintiff claims through Sajjad Husain Khan and his suit could not succeed. Learned Counsel has urged that the provisions of the section do not apply to this property because the suit as a result of which it was brought to sale was one on the basis of a mortgage and though the mortgagee was ostensibly Mt. Sughra Bibi it has been found that the money advanced was the money of Sajjad Husain Khan. He suggests that the whole suit proceeded on the assumption that Mt. Sughra Bibi was the plaintiff whereas she was representing Sajjad Husain Khan throughout. We cannot see that this fact gives rise to any distinction between a case of this nature and other cases to which Section 66, Civil P.C., must apply The property was purchased ultimately at the sale in execution of the decree and the name of Mt. Sughra Bibi was entered in the sale certificate. The plaintiff could not succeed if he had to allege that she had purchased the property on behalf of Sajjad Hussain Khan.
6. In the counter-appeal No. 164 of 1941 the question is whether the learned Judge was right in holding that the plaintiff was entitled to a share in the property in list B. The learned Judge held that this property was not included in the deed of gift executed by Mira Bakhsh on 27th June 1934, because the immovable property specifically mentioned was the property in list A alone. He also held that the property belonged to Sajjad Husain Khan and not to Mt. Sughra Bibi. We have been through the judgment and the evidence and we think the learned Judge was right in holding that the money with which the various properties in this list were purchaged belonged to Sajjad Husain Khan. Learned Counsel for Mt. Sughra Bibi and Mustafa Husain Khan in appeal No. 104 of 1941 has drawn our attention to certain entries made in the account books of the scent manufactory in the month of January 1910. These suggest that Mt. Sughra Bibi was credited with a sum of Rs. 1000 out of Rs. 1400, the price of flowers and oil-seed and learned Counsel argues that this original item was the origin of the money from which the purchases were made. The argument does not convince us because there is no evidence at all that either at that time or at any other time Mt. Sughra Bibi had any property independently of her husband. We think, however, that the matter is not concluded by the finding that the consideration for the various purchases came from the pocket of Sajjad Hussin Khan. It is true, of course, that there is no presumption in this country that purchases of this nature are made by a man for the benefit of his wife, but the learned Judge seems to us to have overlooked one very important consideration. Sajjad Husain Khan, as we have already said, died in year 1934 and none of his immediate heirs, that is, his son and daughters and his father ever suggested that the properties in list B were not the properties of Mt. Sughra Bibi. Mira Bakhsh in his so-called deed of relinquishment did not mention the properties in this list. He purported to specify the properties which were part of the estate of Sajjad Husain Khan and he clearly did not think that the properties in list B were part of the estate. Mustafa Husain Khan and his three sisters entered into a family arrangement with Mt. Sughra Bibi in the year 1936 and at that time these properties in list B were not mentioned among those which were the part of the estate of Sajjad Husain Khan. There is a statement in the document which evidenced this settlement that only the immovable properties specified therein were the properties left by Sajjad Hnsain Khan and these properties do not include the properties in list B. If this circumstance did not exist we should agree with the learned Judge that the properties in this list did belong to Sajjad Husain Khan, but when we find that none of the immediate heirs claimed the properties, we think that is sufficient reason for holding that in this particular instance the husband did intend that the properties should go to his wife for her own benefit and advancement. It was for the plaintiff to prove that the properties he claimed belonged to Sajjad Husain Khan at the time of the latter's death and we are not satisfied that he has discharged the burden which was upon him. In the alternative we think that Mira Bakhsh Khan did intend to make a gift to Mustafa Husain Khan of all the property which came to him from Sajjad Husain Khan. He said in his deed,
I...hereby relinquish my entire right and legal share in the estate of Sajjad Husain Khan deceased in favour of Mustafa Husain Khan.
It is true that he gave a list of properties which he considered to have descended to him from Sajjad Husain Khan but that was merely done by way of description. The intention clearly was that Mira Bakhsh Khan should transfer all his interest in the estate to Mustafa Husain Khan and if that interest did include a share in the properties in list B we consider that he intended to transfer it. In either view of the matter, the plaintiff had no interest in these properties and we consider that his suit in respect of them should have been dismissed. The learned Judge refused to consider the argument that the so-called deed of relinquishment operated to transfer a share in these properties merely upon the ground that that specific claim was not made in the pleadings. It is also argued before us that the memorandum of appeal does not raise the point that the properties in list B were purchased by Sajjad Husain Khan for Mt. Sughra Bibi so that she should personally benefit from them. Mt. Sughra Bibi has throughout maintained that these properties were purchased by herself from her own funds. We do not think, however, that the plaintiff is entitled to recover a share in these properties merely because Mt. Sughra Bibi has made a false defence. The plaintiff has not been prejudiced in any way by any defects in the pleadings. The question whether the deed of relinquishment operates to transfer his share in these properties turns entirely upon the construction of the document and no other evidence is necessary or could affect the decision. In accordance with our finding that the plaintiff has no right to any share in these properties we must hold that the appeal of Mt. Sughra Bibi and Mustafa Husain Khan, No. 164 of 1941, should succeed.
7. As for the cross-objection of Mt. Wilayatan Bibi it raises the same points as those raised by Muhammad Husain Khan in his appeal and it is unnecessary for us to discuss those points any further. We are satisfied that the cross-objection must fail. The result is that we dismiss appeal No. 135 of 1941 with costs. We allow appeal No. 164 of 1941 with costs and dismiss the plaintiff's suit with costs in the lower Court. We dismiss the cross-objection of Mt. Wilayatan Bibi with costs.