Skip to content


Mt. Sunder Kuer Vs. Shah Udey Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily ;Property
CourtAllahabad
Decided On
Reported inAIR1944All42
AppellantMt. Sunder Kuer
RespondentShah Udey Ram and ors.
Excerpt:
- - ' that basdeo sahai was a spendthrift and a man of 'bad character' and wasted a considerable amount of money and contracted heavy debts without any lawful necessity; nathia kuer, fraudulently tried to misappropriate the property of the plaintiff as well and got certain sale deeds and deeds of transfer unlawfully executed in their favour in respect of the property belonging to her (the plaintiff) without her knowledge and information of which she came to know recently; that the plaintiff is an intelligent and literate woman and at the time of her husband's death she was fully capable of understanding the nature of her rights and of safeguarding them; (5) was any debt, due from and binding on sheo prasad, satisfied out of the sale consideration? 7. the court below began its judgment.....verma, j.1. there are before us an appeal and a petition of cross-objections against a decree of the learned subordinate judge of aligarh. the appeal is by the plaintiff, mt. sunder kuer, and the cross-objection is by the first two defendants-respondents but it is for the benefit of defendant-respondent 3 also. the main reliefs claimed by the plaintiff-appellant were: (1) a decree for the ejectment of the first three defendants, described as defendants first party, and for possession over a half-share of certain property situated in mauza narharpur dostpur, (2) a decree for the recovery of mesne profits to the extent of rs. 3600 for the three years preceding the suit and for future mesne profits at the rate of rs. 1200 per annum, (3) a decree for the recovery of rs. 1474, principal and.....
Judgment:

Verma, J.

1. There are before us an appeal and a petition of cross-objections against a decree of the learned Subordinate Judge of Aligarh. The appeal is by the plaintiff, Mt. Sunder Kuer, and the cross-objection is by the first two defendants-respondents but it is for the benefit of defendant-respondent 3 also. The main reliefs claimed by the plaintiff-appellant were: (1) a decree for the ejectment of the first three defendants, described as defendants first party, and for possession over a half-share of certain property situated in Mauza Narharpur Dostpur, (2) a decree for the recovery of mesne profits to the extent of Rs. 3600 for the three years preceding the suit and for future mesne profits at the rate of Rs. 1200 per annum, (3) a decree for the recovery of Rs. 1474, principal and interest, as compensation for certain trees alleged to have been cut and appropriated by the first three defendants, and (4) a declaration in respect of a temple situated within the property in suit and for possession thereof. The learned Subordinate Judge, while holding that the suit was barred by the rule of estoppel as laid down in Section 115, Evidence Act, by the provisions of Section 41, T.P. Act, and by limitation, passed a decree for possession over the property in dispute subject to the condition that the plaintiff should pay a sum of Rs. 38,523 to defendants 1 to 3 within a certain time. The learned Judge further held that the plaintiff was not entitled to any mesne profits and that the claim for compensation on account of the trees alleged to have been cut by the defendants was barred by time. Consequently, the plaintiff has appealed, challenging the decisions on the questions of law and contending that an unconditional decree for possession over the properties in dispute should have been passed in her favour. The decisions on the questions of mesne profits and of compensation for the trees are also challenged. The petition of cross-objections, on the other hand, attacks the decree on the ground that, the Court having held that the suit was barred by estoppel, by Section 41, T.P. Act, and by limitation, the suit should have been dismissed in toto and no decree should have been passed in favour of the plaintiff. The petition further seeks to challenge the correctness of the finding of the Court below on issue 1 framed in the suit. The following pedigree will be helpful:

NABAIN LAL=MT. NATHIA KUER______________|_______________ | | Basdeo Sahai Sheo Prasad=| Mt. Sunder KuerRajendra Behari Lal plaintiff.defendant 4.

2. The family owned zamindari property in five villages, Narharpur Dostpur, the village in suit, being one of them. Upon the death of Narain Lal, which occurred in the year 1907, his two sons remained in possession of the family property as members of a joint Hindu family. Of them, the first to die was Sheo Prasad, the husband of the plaintiff. He died on 26th October 1918. Bas Deo Sahai's death took place on 25th August 1927. At the time of Basdeo Sahai's death, his son, Rajendra Behari Lal, defendant 4, described in the plaint as defendant second party, was an infant, having been born on 16th December 1920. His grand-mother, Mt. Nathia Kuer, applied to the District Judge under the provisions of the Guardians and Wards Act praying that she be appointed guardian of the person and property of Rajendra Behari Lal and her application was granted on 18th May 1928. Subsequently, she applied to the District Judge for permission to sell the properties situated in Mauza Narharpur Dostpur, in her capacity of certificated guardian of Rajendra Behari Lal, and permission as prayed was granted by the District Judge on 8th August 1928. Acting upon that permission, Mt. Nathia Kuer executed, on 15th September 1928, a deed of sale in favour of the first three defendants for a consideration of Rs. 90,000. It is this g deed of sale which the plaintiff seeks to challenge by this suit on the ground that Rajendra Behari Lal was not the owner of the entire property situated in Mauza Narharpur Dostpur, but of only a half share therein, and that the sale deed in respect of the other half was unauthorized. The plaintiff's case is that a partition had taken place between her husband, Sheo Prasad, and his brother, Basdeo Sahai, in the year 1917 by means of a deed of partition executed on 17th May 1917, and that, on Sheo Prasad's death, the plaintiff succeeded to his half share in the property as a Hindu widow and that Rajendra Behari Lal had no title to that half share.

3. The main allegations in the plaint were that Narain Lal was a man of substance and on his death in 1907, left, besides zamindari property, money in cash, money-lending business, indigo factory 'and business of considerable value;' that Basdeo Sahai was a spendthrift and a man of 'bad character' and wasted a considerable amount of money and contracted heavy debts without any lawful necessity; that Sheo Prasad finding that, Basdeo Sahai was mismanaging the property, and apprehending that the property would be wasted, separated from him by means of a deed of partition executed on 17th May 1917 under which each of the two brothers became the owner of a half share in the property and it was agreed upon that the zamindari property would be partitioned by metes and bounds within one month, either by mutual consent or through the Court; that, 'shortly after' the execution of the deed of 17th May 1917, Sheo Prasad became ill and so could not get the zamindari property partitioned by metes and bounds; that, as the result of the execution of the deed of 17th May 1917, the family ceased to be joint and the brothers became tenants in common, but Basdeo Sahai continued to manage the entire property as a lambardar, that upon the death of Sheo Prasad on 26th October 1918, the plaintiff succeeded to his half share in the property as his heir; that the plaintiff, at the time of her husband's death, was a minor and Basdeo Sahai continued to manage, as a lambardar, the plaintiff's half share also and 'at different times paid her money telling her that it was the profit of her share;' that the plaintiff, who was a minor at the time of her husband's death, was under the influence of Basdeo Sahai, who was her husband's elder brother, and used to obey Basdeo Sahai's orders; that the plaintiff was an illiterate and pardanashin woman and was not able to comprehend business matters and the nature of her rights and was unable to safeguard them; that when Basdeo Sahai died on 25th August 1927, his minor son, Rajendra Behari Lal--the defendant of the second party--bocame the sole owner of Basdeo Sahai's half share in the property; that the creditors of Basdeo Sahai 'got an opportunity' and, colluding with defendant second party and with Mt. Nathia Kuer, fraudulently tried to misappropriate the property of the plaintiff as well and

got certain sale deeds and deeds of transfer unlawfully executed in their favour in respect of the property belonging to her (the plaintiff) without her knowledge and information of which she came to know recently;

4. that the defendants first party had full knowledge of the affairs of the family of Basdeo Sahai and Sheo Prasad but, in spite of that knowledge, they, in collusion with Nathia Kuer, who was the guardian of Rajendra Behari Lal, without any lawful necessity obtained a sale deed in their favour on 15th September 1928 in respect of the zamindari property in mauza Narharpur Dostpur, together with its appurtenances, at a very low price in lieu of a debt which was exclusively due from Basdeo Sahai, and had the plaintiff's half share also included in that sale deed; that the plaintiff had no knowledge of the sale deed aforesaid and was never told anything about it and it was only 'on getting a copy of the said sale deed read over to her' that she came to know that the vendor and the vendees, in collusion with one another, had got false recitals entered in the sale deed; that the sale deed aforesaid is void and ineffectual so far as the plaintiff's half share in the property is concerned and the vendees--defendants first party--are in wrongful possession of that share and are liable to pay mesne profits, that the vendees have cut down and appropriated the trees standing in a grove and the plaintiff is entitled to recover from them half of the value of the trees; that the vendees have obtained a writing from Nathia Kuer to the effect that vendees would be managers of the temple of Behari Ji Maharaj situated in the village in question; and that the temple belongs to the family and no outsider can be its manager and the plaintiff is entitled to manage it.

5. The vendees--defendants first party--belong to two different families, the first two defendants being members of one family and the third defendant of another. The first two defendants may be described as the Shah defendants and the third defendant as the Bohra defendant. Defendant 2, Bhikam Chand, is the son of one Shah Kishori Lal deceased who was the brother of defendant 1, Udey Ram. Defendant 3, Bohra Mitthu Lal, is the nephew of a man whose name also was Kishori Lal, being the son of the latter's brother, and is now the sole surviving member of his family. The sale deed in dispute is in favour of these defendants; namely, Udey Ram Bhikam Chand and Mitthu Lal.

6. Defendant 1, Udey Ram, alone filed a written statement. It was apparently meant to be on behalf of himself and his nephew, Bhikam Chand, defendant 2. Defendant 3, Mitthu Lal, by an application filed on 23rd March 1934, stated that the written statement filed by defendant 1 be considered to be a written statement filed on his behalf also. The pleas raised by this written statement were that Narain Lal died in a state of indebtedness; that, after his death, Basdeo Sahai and Sheo Prasad also had to borrow money for necessary purposes; that these loans were mostly borrowed by Basdeo Sahai as he was the manager of the family; that Basdeo Sahai and Sheo Prasad in point of fact never separated and continued to be the members of a joint Hindu family up to the time of Sheo Prasad's death, upon the happening of which event Basdeo Sahai became the owner of the entire property by right of survivorship and, when Basdeo Sahai died, his son, Rajendra Behari, became the sole owner of the whole property; that the deed of 17th May 1917 was a mere paper transaction, 'executed merely out of policy,' and Basdeo Sahai and Sheo Prasad did not ever intend to separate and did not in point of fact ever separate but continued to be members of a joint Hindu family and Sheo Prasad died in a state of jointness with his brother, and left no estate to which the plaintiff could succeed; that no profits have ever been paid to the plaintiff; that the plaintiff, in a number of suits brought by certain persons who alleged that Sheo Prasad had borrowed money from them, had stated that Sheo Prasad had died in a state of jointness with Basdeo Sahai and so she had been improperly impleaded; that, although decrees were passed against the plaintiff, payments were made by Basdeo Sahai as the debts, though standing in the name of Sheo Prasad alone, had been incurred by the joint family; that by 1923 the debts due from the family had become considerable and decrees were put into execution and the property belonging to the family was going to be sold, and so, on 19th June 1923, Basdeo Sahai executed a deed of usufructuary mortgage in respect of the entire property situated in the inauza in suit--Narharpur Dostpur--in favour of Udey Bam (defendant 1) and Kishori Lal, the uncle and predecessor-in-title of defendant 3 in lieu of Rs. 42,000 and saved the property, and under that mortgage deed the management of the temple in question was also entrusted to the mortgagees and 'the plaintiff put her signature on the said mortgage deed in token of her consent;' that, after Basdeo Sahai's death, Mt. Nathia Kuer, in order to satisfy the mortgage debt due under the deed of 19th June 1923 and certain other debts, which had remained unpaid and for the realisation of which a number of properties were advertised for sale, obtained the permission of the District Judge of Aligarh and executed the sale deed in question on 15th September 1928; that, at the time of the execution of the sale deed in question, the plaintiff led the defendants to believe that, as a matter of fact, no partition had ever taken place between Sheo Prasad and Basdeo Sahai and that they had never in reality intended to alter the status of the family, and that the deed of 17th May 1917 had not been executed with the intention of bringing about a separation or of putting an end to the joint status; that the plaintiff, after fully understanding the nature of the transaction evidenced by the sale deed of 15th September 1928 and its effects on her rights, appended her signature to that sale deed as a witness in token of her consent;, that, on Sheo Prasad's death, the plaintiff had caused mutation to be effected in favour of Basdeo Sahai and, on Basdeo Sahai's death, mutation had taken place in favour of Rajendra Behari alone and thus the plaintiff had led the defendants and everybody else to believe that Basdeo Sahai and Rajendra Behari Lal were the owners of the entire property and the defendants had, on the faith of this representation on the part of the plaintiff, parted with a considerable amount of money; that the plaintiff's suit was barred by estoppel; that the defendants were also protected by the provisions of Section 41, T.P. Act; that, ever since the death of Sheo Prasad, Basdeo Sahai and Rajendra Behari had remained in exclusive possession of the entire property as owners and the defendants had been in such possession since the execution of the sale deed in dispute and the plaintiff had never been in possession of the property in suit, and so the suit, which was instituted on 2nd December 1933, was barred by limitation; that the plaintiff was about 20 years old at the time of Sheo Prasad's death and her allegation that she was a minor at that time was wrong; that the plaintiff is an intelligent and literate woman and at the time of her husband's death she was fully capable of understanding the nature of her rights and of safeguarding them; that, even if it be taken for granted that Sheo Prasad had separated from Basdeo Sahai, the plaintiff must be taken to have surrendered her widow's estate in favour of the then reversioner, Basdeo Sahai, because she caused mutation to be effected in favour of Basdeo Sahai by declaring that he alone was the owner of the entire property; that, even if it be assumed that the plaintiff was a minor at the time of her husband's death, she must be held to have surrendered her rights, because on several subsequent occasions, when she had attained majority, she declared that Basdeo Sahai and Rajendra Behari Lal were the sole owners of the entire property; that the defendants had purchased the property in lieu of debts which were binding on the entire family and the plaintiff could not, therefore, in any event, obtain possession of the property without refunding the price paid by the defendants; that the trees had been cut by the defendants in the bona fide belief that they belonged to them; that, in any event, the claim in respect of the price of the trees was barred by time; that the value of the trees and the mesne profits had been exaggerated by the plaintiff; and that the suit had been brought in collusion with Rajendra Behari Lal, defendant 4. The following issues were framed by the Court below for trial:

(1) Were Sheo Prasad and Basdeo Sahai not members of a joint Hindu family at the time of the former's death? (2) Do Section 41, T.P. Act, and Section 115, Evidence Act, bar the suit? (3) What was the age of the plaintiff at the time of sale? (4) Is the claim time-barred? (5) Was any debt, due from and binding on Sheo Prasad, satisfied out of the sale consideration? If so, how much, and how does this fact affect the suit? (6) What was the value of the trees cut by the defendants and how does it affect the suit? Is that part of the claim time-barred? (7) To how much profit, if at all, is the plaintiff entitled? (8) Did the plaintiff surrender her rights in favour of Basdeo Sahai? (9) To what relief, if any, is the plaintiff entitled?

7. The Court below began its judgment by addressing itself to the question whether the allegation of defendants first set that the suit had been filed by the plaintiff in collusion with her nephew, Rajendra Behari Lal, defendant second set, was well founded. After taking into consideration various circumstances and the probabilities of the' case, it reached the conclusion that the allegation was true, and expressed its decision thus: 'I am convinced that Rajendra Behari Lal and the plaintiff are working together to defeat the vendees.' The finding on issue 1 was that the agreement of 17th May 1917 brought about a separation of the family. Under issue 2, the decision was that the plaintiff's suit was barred by Section 41, T.P. Act, and by Section 115, Evidence Act. With regard to issue 3, the Court, believing the defendants' evidence, found that the plaintiff was born in Sambat 1956 (corresponding to 1899-1900 A.D.). The decision on issue 4 was in favour of the defendants. The finding under issue 5 was that there were circumstances in this ease which entitled the defendants in equity and justice to reimbursement, and that the total amount to which they were entitled was Rs. 38,523. Under issue 5 the Court found that the claim for the recovery of the value of the trees was barred by time. The decision on issue 7 was that the defendants were not trespassers and that the plaintiff was not entitled to any mesne profits. With regard to issue 8, the Court expressed the opinion that the plaintiff's conduct on various occasions did amount to a surrender. Coming to the last and general issue, viz., issue 9, the Court expressed itself thus:

In view of my findings above, the plaintiff is, technically speaking, entitled to no relief, but, in view of the fact that she is a pardanashin lady and the transferees were not absolute strangers, I consider it more equitable that the plaintiff should be made to reimburse the transferees to the extent of the benefit derived by her under the usufructuary mortgage of June 1923 and the sale deed in dispute, which amount comes to Rs. 38,523.

8. In the result the Court below passed a decree in favour of the plaintiff for possession of the property in dispute on condition of her paying Rs. 38,523 to defendants 1 to 3 'within one month after the expiry of the period of appeal.' It was further ordered that if the plaintiff failed to pay the amount within the period fixed the suit would stand dismissed with costs. The plaintiff was ordered to bear her own costs and to pay half the costs of the first three defendants. The other half of the costs of those defendants was made payable by defendant 4. Having regard to the findings at which the Court below arrived on the issues framed, it is not surprising that the decree which it passed has been strongly attacked by both the parties. The ease was argued at great length. The entire evidence was laid before us in detail and a large number of rulings were cited. We took time to consider our judgment. We have studied the record for ourselves and have carefully examined the questions of law raised.

9. It will be convenient at this stage to narrate certain facts and events. We propose, as we proceed, to indicate the facts with regard to which the parties are at variance and to, state the nature of the controversy. As already stated, Narain Lal died in 1907 in a state of jointness with his sons, Basdeo Sahai and Sheo Prasad. Judging from what is stated by the plaintiff and her witness Sukhan Lal, Sheo Prasad must have been about 12 years of age at the time of hi3 father's death. On Narain Lai's death, his name was removed from the Government records and Basdeo Sahai and Sheo Prasad, as the surviving members of the family, were entered as the owners of the zamindari properties belonging to the family. The plaintiff's evidence shows that Narain Lal carried on money lending and had an indigo business, and that his sons continued those businesses (vide Sukhan Lal). It further appears that the family was in a state of financial embarrassment even during the lifetime of Narain Lal. The witness Sukhan Lal states that Narain Lal was indebted to one B. Kishori Lal, vakil. There is, further, a deed of simple mortgage, dated 25th May 1905, executed by Narain Lal in favour of Gulzari Lal and his brothers, sons of B. Kishori Lal, under which Narain Lal borrowed a sum of Rs. 13,000 and mortgaged two items of zamindari property (EX. CCCC-1). It is stated in this deed that the executant had to repay a loan which he had borrowed from a lady called Rani Kishori under a mortgage deed of 29th March 1900. It further appears that the amount due to Rani Kishori was more than Rs. 13,000 and that Narain Lal was borrowing from Gulzari Lal and his brothers only Rs. 13,000 as he had made other arrangements for raising the remainder of the sum needed for payment to Rani Kishori. It would thus appear that at the time of Narain Lai's death the family was indebted to a considerable extent, and the suggestion made on behalf of the defendants in the cross-examination of the plaintiff's witness Sukhan Lal that the debts incurred during Narain Lal's lifetime amounted to Rs. 26,000 may not have been very wide off the mark. It is also clear that, in Narain Lal's lifetime, mortgages, hypothecating zamindari property belonging to the family, had to be executed. It appears that the financial difficulties, which had begun in the father's lifetime, pursued the sons.

10. It is common ground that after Narain Lal's death the borrowings continued, mostly by the elder son Basdeo Sahai, and BOW and then by the younger son Sheo Prasad. There is not before us any definite evidence to show what happened to the indigo business. In all likelihood it proved to be a losing concern, for it is common knowledge that all indigo business in this country was, towards the end of the last century and during the opening years of the present century, gradually ruined as the result of foreign competition. However that may be, it is evident that the father died indebted at least to the extent of Rs. 13,000, which carried interest at the rate of six per cent, per annum compoundable every six months, and that the sons found it necessary to incur further debts. Apart from the fact that ceremonies consequent upon the father's death must have involved the brothers in certain expenditure, a number of marriages had to be celebrated during this period. According to the witness Sukhan Lal, Basdeo Sahai's daughter was married. Sheo Prasad himself was married twice. His first wife died and he then married the plaintiff, Mt. Sunder Kuer. According to the plaintiff's brother and witness, Nand Kishore, the marriage with the plaintiff took place in the year 1915. This was the position of affairs when, on 17th May 1917, the brothers executed a deed, described as a deed of agreement, by which they purported to separate. It is recited in this deed that Basdeo Sahai had been the manager of the family, that the 'ancestral debt' which had been Rs. 13,000, could not be paid and had now reached the figure of Rs. 26,580, that according to Basdeo Sahai further debts had been incurred since the death of Narain Lal, that the persons to whom the debt borrowed by Narain Lal was due were demanding repayment of the loan, and that the executants had consequently 'examined and adjusted the past accounts' and had come to the conclusion that the family should cease to be a joint family. It is further stated in the deed that the executants would in future be owners of a half share in the joint property and that they would, within one month, either partition the zamindari property themselves or would have it partitioned through the Court; in other words, that the actual division by metes and bounds of the zamindari property would be effected by 17th June 1917. We shall have occasion to deal with this deed in a later part of this judgment.

11. The plaintiff's witness, Sukhan Lal, has stated that the brothers went to Aligarh, obtained legal advice and had the deed drafted by B. Kanhaiya Lal, vakil. It is further stated by this witness that the deed was executed at Aligarh and was attested by the vakil Kanhaiya Lal, another vakil Shiam Sunder Lal, a third vakil's clerk, Bhola Nath, and a lady called Mt. Patraji. It was not attested by anyone who was a resident of village Gangiri, which is the place of residence of this family, nor by anyone who was a relation of Basdeo Sahai and Sheo Prasad. The original of this deed has not been produced. The plaintiff Mt. Sunder Kuer and her witness, Sheorti Lal, have stated that the original, which was with the plaintiff, could not be found on a search made by her. A certified copy of this deed has been produced and is marked Ex. 6. It shows only three attesting witnesses, viz., Kanhaiya Lal, Shiam Sunder Lal and Bhola Nath. There is evidently some error in Sukhan Lai's statement when he mentions a fourth attesting witness called Mt. Patraji. It further appears from Ex. 6 that the deed was presented for registration before the District Registrar at Aligarh and was registered there. It is common ground that the division of the zamindari property by metes and bounds, which was to have been made within one month of the execution of the deed, was never made. There are certain other terms laid down in the deed, e.g., the payment of a sum of Rs. 6000 by Sheo Prasad to Basdeo Sahai (para. 2 of the deed), the realization by Sheo Prasad from Basdeo Sahai of any sum of money which the former might have had to pay to any creditor (para. 3 of the deed) and the realization by the brothers of a half share each of the amounts due from any debtor of the family (para. 4 of the deed),--of the fulfilment of which unimpeachable evidence could have been given, but no evidence has been adduced in respect of them. It is, of course, possible that Sheo Prasad never had to pay anything to any creditor and that nothing was ever realised from any debtor of the family. But no such argument can be advanced with regard to the undertaking on the part of Sheo Prasad to pay Rs. 6000 to Basdeo Sahai as his contribution towards the debts contracted by Basdeo Sahai for family necessities. It is not even alleged that Sheo Prasad ever paid anything to Basdeo Sahai.

12. The position thus was that, even after the execution of the deed of 17th May 1917, the zamindari property continued to be jointly held as before and the names of the brothers continued to be recorded in the Government papers as they had been since the death of their father, and there is no tangible evidence of any change--as compared to what it had been before--in the conduct of their business affairs by the brothers. The borrowings continued {vide Ex. NN-1, a promissory note executed by Sheo Prasad on 7th August 1917, Ex. CCC-1, a promissory note executed by Basdeo Sahai on 29th June 1918 and Ex. DDD-1, another promissory note executed by Basdeo Sahai on 29th June 1918). It is noteworthy that it is stated in Ex. CCO-1 that the money was borrowed by Basdeo Sahai for the payment of Government revenue. Matters stood thus when Sheo Prasad died on 26th October 1918. He was, according to the evidence of the plaintiff, 23 years old at the time of his death. According to the statement made by the plaintiff, Mt. Sunder Kuer, in the witness-box, Sheo Prasad died after an illness lasting one year, and this illness was phthisis. Thus, according to the plaintiff, Sheo Prasad fell ill some time in October 1917. On the death of Sheo Prasad an occasion again arose for changes being made in the Government records. What is beyond controversy is that what happened was that the name of Sheo Prasad was expunged from the records of rights and the name of Basdeo Sahai alone was entered against the entire property. The case of the defendants is that, in connexion with the mutation proceedings which were started, the plaintiff, Mt. Sunder Kuer, made a statement before an official of the revenue Court, which was seized of the mutation case, to the effect that the family was joint and undivided, that the name of Basdeo Sahai alone should be recorded and that she did not want her name to be entered in place of her husband's name, and a copy of the alleged statement, Ex. XXX-1, is produced. This bears date 19th January 1919. The record of that case had been summoned from the revenue c Court and the witness, Pirbhu Lal, has proved plaintiff's signature and thumb-impression on the original statement. A copy of the order of the revenue Court, dated 25th January 1919, mentioning the statement made by Mt. Sunder Kuer and directing the entry of the name of Basdeo Sahai alone is also produced--Ex. KKKK-1. The plaintiff's case, on the other hand, is that she never made any such statement and that whatever happened in the mutation proceedings was without her knowledge. In another part of her statement she has stated that she had actually instructed Basdeo Sahai to get her name entered in the Government records in place of Sheo Prasad's name and that she gave to Basdeo Sahai 'a paper' after signing her name on it in order that he might carry out her instructions. The suggestion is that Basdeo Sahai might have utilised that paper for forging a statement on her behalf and that he dishonestly got his own name entered against the entire property without the plaintiff's knowledge. Her allegation is that she came to know of the non-entry of her name 2 or 2 1/2 years before she gave evidence in May 1934.

13. The next set of facts which must be mentioned are in connexion with certain suits which were instituted by a number of persons from whom Sheo Prasad had borrowed money on promissory notes. There were four such suits. They may be divided into two groups, namely, those in which Mt. Sunder Kuer alone was impleaded as a defendant and those in which both Mt. Sunder Kuer, and Basdeo Sahai were made defendants. The creditors who sued Mt. Sunder Kuer alone were Girdhari Lal and others (suit No. 11 of 1919 of the Court of the Munsif of Havali, Aligarh) and Kr. Man Singh (suit No. 256 of 1919 of the Court of the Subordinate Judge of Aligarh). These suits were based on promissory notes executed by Sheo Prasad, and the allegation of the plaintiff in each suit obviously was that Sheo Prasad was a separated Hindu and that his widow, Mt. Sunder Kuer, was his heir and was liable for the loans borrowed by her husband. In both of these suits written statements were filed on behalf of Mt. Sunder Kuer alleging that her husband had died as a member of a joint Hindu family with his brother, Basdeo Sahai, and that she had consequently been wrongly sued (EX. T-1 and Ex. FFF-1). Both of these suits were decreed against her on the finding that the agreement of 17th May 1917 furnished evidence of a separation and that the suit had been rightly brought against her. In Girdhari Lal's suit suit No. 11 of 1919 of the Munsif's Court) an appeal was filed in the Court of the District Judge on behalf of Mt. Sunder Kuer and the plea as to Sheo Prasad having died in a state of jointness with Basdeo Sahai was reiterated (EX. EEE-1). We do not know what the decision in the appeal was. It is noteworthy that Mt. Sunder Kuer's counsel in Suit No. 11 of 1919 (Girdhari Lal's suit) was Mr. Kanhaiya Lal, the gentleman who had drafted the deed of agreement of 17th May 1917, and his clerk, Sukhan Lal, was the scribe of the deed of agreement as well as of the written statement filed in Suit No. 11 of 1919. The remaining two suits were brought by Hari Shankar Gupta (suit No. 158 of 1919 of the Court of the Second Additional Subordinate Judge, Aligarh) and by Nanak Chand, along with his brothers, (suit No. 163 of 1919 of the Court of the Second Additional Subordinate Judge of Aligarh). The written statements filed in these suits are not before us but it is stated in the judgment of the Court below that both, Basdeo Sahai and Mt. Sunder Kuer contested the suits. Both of them ended in a compromise by which Basdeo Sahai undertook the entire responsibility and Mt. Sunder Kuer was exempted. The decrees in these suits are Ex. G-1 and Ex. L-1. The Court below has stated in its judgment that Mt. Sunder Kuer's pleader identified Basdeo Sahai when these compromises were verified.

14. To go back for a moment to the first group of these suits, viz., the suits of Girdhari Lal and Kr. Man Singh. The plaintiff's case with regard to the written statements filed in those suits was that Basdeo Sahai had 'prosecuted' both those cases on her behalf, that she did not know what the contents of the written statements were, that Basdeo Sahai knew them, that those written statements had never been read over to her and that she had not : instructed Basdeo Sahai to allege in those written statements that Sheo Prasad had died in a state of jointness with Basdeo Sahai. She does not, however, state what instructions she had given to Basdeo Sahai. She admits that the signatures on those written statements were hers, but alleges that she had put down those signatures on pieces of blank paper. As already stated, the scribe of one of those written statements, viz., the one in Suit No. 11 of 1919, was Sukhan Lal clerk of Mr. Kanhaiya Lal, and he has been examined as a witness on behalf of the plaintiff. He has stated that Sunder Kuer signed the written statement after he had scribed it, though he has added that she did not sign it in his presence. He had to admit, however, that he had stated in a former suit (Suit No. 40 of 1933) that that written statement bore the signature of Mt. Sunder Kuer. The scribe of the written statement in Kr. Man Singh's suit has not been examined. It appears, however, from the judgment of the Court talow that, when Kr. Man Singh executed his decree and attached certain zamindari property, Basdeo Sahai preferred a claim under Order 21, Rule 58, Civil P.C., alleging that he was the sole owner of the property and that the judgment-debtor, Mt. Sunder Kuer, had no title to it. Sunder Kuer did not contest that claim, and it was allowed. Thereupon, Kr. Man Singh filed a declaratory suit under Order 21, Rule 63 of the Code and impleaded both Basdeo Sahai and Sunder Kuer as defendants. They both remained absent and the suit was decreed ex parte. The defendants rely on the conduct of the plaintiff in connexion with these suits, and the plaintiff's explanation is that whatever happened in those suits was done by Basdeo Sahai who had been entrusted by her with the duty of looking after those cases on her behalf.

15. Basdeo Sahai borrowed various sums of money from a number of persons and satisfied, in whole or in part, some of the decrees mentioned above (vide, for example, promissory note Ex. ZZ-1 dated 20th May 1922 under which a sum of Rs. 2000 was borrowed from Mohammad Ahmad and Mohammad Owes 'for the satisfaction of the decree of Nanak Chand and others'). Some of these new creditors obtained decrees. Certain other creditors, whose debts were of an earlier period, also obtained decrees. In the execution of the decree of one of them--Lala Bhim Sen--two items of zamindari property were attached and advertised for sale for the realization of Rs. 14,867-13-0 {vide Ex. UUUU-1). In this proclamation of sale it was stated that the property which was proposed to be sold was subject to an encumbrance amounting to Rupees 26,580-15 0 in favour of Gulzari Lal, Murari Lal and Banwari Lal, sons of Kishori Lal, under a deed of simple mortgage executed by Basdeo Sahai and Sheo Prasad and registered on 22nd May 1917. Sales in execution of some of the decrees took place. These sales could be set aside and the property saved if the amounts due were paid within a certain time. There were other creditors who were pressing for payment of their dues and were threatening to sue. With the object of raising money to pay off the debts--or most of them--Basdeo Sahai borrowed a sum of Rs. 42,000 from Kishori Lal (deceased uncle of defendant 3) and Udey Ram, defendant 1, and executed, on his own behalf and on behalf of his minor son. Rajendra Behari, a deed of usufructuary mortgage in their favour on 19th June 1923. The property mortgaged under this deed was the very property which is now in suit, namely, the zamindari shares in village Narharpur Dostpur. The indigo factory was to remain in the possession of the mortgagor (para. 5 of the deed). It was laid down in para. 6 of the deed that the mortgagees were responsible for the management of the temple of Thakur Behari Ji, that they would have to spend Rs. 100 per annum on the worship of the deity, that the mortgagees would have to maintain an account of this expenditure which should be shown to the mortgagor every year and that, if the mortgagees failed to spend lis. 100 per annum on the temple, they would have to set off such amounts as they failed to spend against the mortgage money. The mortgage money, barring a sum of Rs. 132-13-11 which was received in cash, was left with the mortgagees for payment to various creditors and decree holders. Among the decrees which the mortgagees had to satisfy were the decrees of Kuer Man Singh and Hari Shankar Gupta mentioned above. It has not been contended that the mortgagees failed to fulfil their obligations and to pay to the creditors the amounts which had been left with them. Reference may also be made to Exs. W-1, V-1, NNN-1, CC-1, S-1, VVV-1, KK-1 and LL-1. It is also beyond question that the mortgagees got into possession of the property mortgaged to them and obtained mutation. There is, however, a controversy between the parties in respect of one matter connected with the execution of this mortgage. The case of the defendants is that the plaintiff was fully aware of the execution of this deed, and they rely on a signature on the deed, which they allege to be the signature of the plaintiff Mt. Sunder Kuer, as an attesting witness. The plaintiff denies that the signature is hers and says that it is a forgery. Her case is that she was never informed of the execution of this deed, that she never signed it and that she came to know of the mortgage only recently. It may be mentioned that this mortgage deed was registered in the office of the Sub-Registrar at Sikandra Rao. It thus appears that the village in suit is situated within the jurisdiction of the Sub-Registrar's office located at Sikandra Rao.

16. Basdeo Sahai had to incur further debts. He had also to sell away the zamindari in village Malsai in order to satisfy decrees obtained by certain creditors-Rai Indar Narain, Rai Bahadur Seth Chiranji Lal, Badri Prasad and Tejpal, and Babu Brij Mohan Lal. This sale was for Rs. 41,000, (Ex. 7). Later on, certain other creditors obtained decrees for considerable sums of money. This was the state of affairs when Basdeo Sahai died on 25th August 1927. It must be pointed out here that the death of Basdeo Sahai brought into existence yet another occasion when the question of the entry of names against the zamindari properties in the Government records arose. It is common ground, however, that what happened was that Basdeo Sahai's name was removed and the name of his minor son, Rajendra Behari, defendant 4, was entered in all the records against the entire property.

17. The creditors pressed for payment, and such of them as had obtained decrees against Basdeo Sahai took steps to bring Rajendra Behari on the record in place of Basdeo Sahai. We have evidence before us in respect of one of such decrees, namely, the decree obtained by Mohammad Ahmad and Mohammad Owes on 15th July 1927 in suit No. 46 of 1927 for Rs. 28,988-10-0 (Ex. JJJJ-1). This decree was executed against Rajendra Behari and the zamindari shares in the residential village of Gangiri were attached and advertised for sale for the recovery of Rs. 32,112-9-0 (Ex. PPPP-1). In the meantime, Mt. Nathia Kuer, the mother of Basdeo Sahai and Sheo Prasad, applied to the District Judge of Aligarh for her appointment as the guardian of Rajendra Behari under the provisions of the Guardians and Wards Act. This application was granted and a certificate of guardianship was issued to Mt. Nathia Kuer on 18th May 1928. Decrees were being executed against Rajendra Behari and properties were being attached and advertised for sale. Mt. Nathia Kuer, accordingly, in her capacity of the certificated guardian of Rajendra Behari, applied to the District Judge for permission to sell the property, including the indigo factory, situated in mauza Narharpur Dostpur. At some stage of these proceedings a draft of the proposed sale deed was produced before the District Judge. This draft purported to bear a thumb-mark, which evidently was the thumb-mark of Mt. Nathia Kuer who admittedly is illiterate, and a signature purporting to be that of Mt. Sunder Kuer (Ex. WWW-1, which is a certified copy. The original was also summoned). The vendee-defendants rely upon the signature of Mt. Sunder Kuer, while she denies that she ever signed the document. The permission sought for was granted by the District Judge on 8th August 1928. In pursuance of that permission, Mt. Nathia Kuer executed, on 15th September 1928, the sale deed which the plaintiff challenges by the present suit to the extent of her alleged half share. We have on the record the original of the sale deed, Ex. GGG-1, and also a certified copy, Ex. 1. This sale deed is in lieu of Rs. 90,000 and is in favour of the first three defendants. Out of the sale consideration, a sum of Rs. 42,000 was set off in full satisfaction of the amount due under the usufructuary mortgage of 19th June 1923. Another sum of Rs. 800 was credited towards a debt due to Udey Ram under a promissory note executed by Basdeo Sahai on 19th July 1926. A sum of Rs. 7475 was left with the vendees to be deposited in Court in satisfaction of a decree obtained by one Mt. Kishen Devi in suit No. 339 of 1925 of the Subordinate Judge's Court. The balance, Rs. 39,725, was deposited in the Court of the District Judge to be utilised for the purpose of the satisfaction of three decrees, including the decree of Mohammad Ahmad and Mohammad Owes mentioned above. There is acute controversy between the parties with regard to the circumstances attending the execution of this sale deed. The following recitals are contained in this deed:

Be it further noted that Pandit Basdeo Sahai and Pandit Sheo Prasad were two own brothers and were owners of the entire ancestral property in equal shares. Both the brothers lived jointly and were members of a joint Hindu family, but on account of some acts of Pandit Basdeo Sahai, Pandit Sheo Prasad thought it proper to ostensibly divide the property in two shares so that at least one portion thereof might be saved from (private and public) sale, etc. With that very consideration an agreement relating to partition was executed on 17th May 1917 between the two brothers aforesaid, but as a matter of fact the same was not enforced, nor was any mutation of names caused to be effected on the basis thereof. Even after the execution of the deed of agreement the two brothers continued to live jointly just as they had been (living) before and no change was effected in the joint family in any way. Sheo Prasad aforesaid died as a member of the joint family and, after his death, his widow Mt. Sunder Kuer lived jointly as before with Pandit Basdeo Sahai. She is still joint and lives jointly with Rajendra Behari Lal and Mt. Nathia Kuer, his grand-mother. Under these circumstances she has no right other than that of maintenance in the property sold or in any other property, nor has mutation of names been effected in her favour in the revenue papers. On the other hand, after the death of her husband she willingly caused the name of Pandit Basdeo Sahai to be recorded in the revenue papers against all the property against which the name of her husband had stood recorded. Even now she has no objection to the said property being sold. The contents of this sale deed have been caused to be read over and explained to her through Babu Ishwar Das, vakil, and her signature as a marginal witness has been obtained in token of her consent and the vendees have been sufficiently satisfied. Mt. Sunder Kuer has no interest in the property sold.

18. There is an endorsement at the foot of the deed in the following words:

I read and explained the sale deed to Mt. Sunder Kuer who admitted it and attested the sale deed. Mt. Sunder Kuer was identified by Dr. Ambika Prasad of Gangiri.

The signatures of Ambika Prasad and Ishwar Das, vakil, appear below this endorsement. The signature of Mt. Sunder Kuer appears as the first attesting witness. The vakil, Ishwar Das, has been examined by the defendants and has deposed in support of the endorsement made by him which has been quoted above. The case of the vendees defendants 1 to 3 is that Mt. Sunder Kuer was aware that the sale deed was going to be executed, that she understood the meaning and effect of the recitals quoted above, that Mr. Ishwar Das explained the position to her and she understood it, and that, after fully realising the import and the effect of the transaction, she signed the document as an attesting witness. The defendants contend that Mt. Sunder Kuer, by her conduct at the time of the execution of the mortgage deed of 19th June 1923 and again at the time of the execution of the sale deed in question, intentionally caused them to believe that there had in point of fact been no separation between Basdeo Sahai and Sheo Prasad, that Sheo Prasad had died as a member of a joint Hindu family, that Basdeo Sahai and Rajendra Behari were the sole owners of the entire property belonging to the family, and that Rajendra Behari had-a good title to convey in respect of the entire property. The plaintiff, on the other hand, denies all knowledge of what happened at the time of the execution of the sale deed and alleges that she had no knowledge of the sale when it was effected, that nobody ever informed her of it nor explained anything to her, that the statements contained in the endorsement made by Babu Ishwar Das are false, or, at any rate, somebody personated her, that her alleged signature on the sale deed is a forgery and that she heard of the sale in question 2 or 2 1/2 years before 13th May 1934, which was the date on which she gave evidence, in other words, that she heard of it at the end of 1931 or beginning of 1932. It may be mentioned that the vendees obtained mutation of their names upon the execution of that sale deed. It may also be mentioned that it has not been contended on behalf of the plaintiff that any part of the sale consideration remained unpaid. (After considering the evidence as to the correct age of the plaintiff their Lordships proceeded.) We agree with the learned Subordinate Judge in holding that the plaintiff entirely failed to prove that she was born in Sambat 1961. We further, agree with the learned Subordinate Judge in believing the evidence adduced by the defendants and in holding that the plaintiff was born in sambat 1956, which corresponds to the year 1899 A.D. We may mention that we are unable to endorse the observation made by the learned Subordinate Judge with regard to the defendants' evidence that 'that evidence too is not very reliable and is only oral.' We are not able to see what documentary evidence the defendants could have produced. The oral evidence produced by the defendants is, as already stated, consistent with the probabilities of the case and is far more reliable than the evidence produced by the plaintiff.

19. We propose now to take up issue 2 framed by the Court below. That issue raises the question whether the plaintiff's claim is barred by the provisions of Section 115, Evidence Act, and whether the defendants are entitled to the protection provided by Section 41, T.P. Act. The learned Subordinate Judge, in the course of his judgment on this issue, has remarked that the fact that the plaintiff is a pardanashin lady 'is a great asset in her favour.' We entirely agree. We would further observe that the plaintiff and her advisers have done all that could humanly be done to exploit that asset. A lengthy argument has been addressed to us with regard to the rights and privileges of pardanashins and a number of rulings have been cited. Before considering that matter, however, we must deal with an argument which, if it is well-founded, prevents the defendants from raising the plea of estoppel and thus makes it unnecessary for us to consider that plea any further. It has been argued that the defendants knew the real facts and so could not have been misled by any representation made by the plaintiff, and reliance has been placed on the decision of their Lordships of the Privy Council in Mohori Bibee v. Dharmodas Ghose ('03) 30 Cal. 539. The contention is that the families of the plaintiff and of defendant 3, Mitthu Lal, are related to each other and that Bohra Kishori Lal, the deceased uncle of Mitthu Lal, used to live at Narharpur Dostpur and used to manage the property of Narain Lal and his sons and so must have known that there had been a separation between Basdeo Sahai and Sheo Prasad. The argument proceeds on the assumption that there was in reality and in fact a separation between Basdeo Sahai and Sheo Prasad, and we propose to deal with it on that footing. Before doing so, however, we must observe that this argument does not appear to have been put forward before the Court below with the result that we have not the benefit of an, adjudication by that Court on the point. It is obvious that certain facts have to be found before the legal argument advanced before us can arise. Being desirous, however, not to shut out any argument on what may be said to be a technicality, we have allowed the point to be raised and argued. [Their Lordships held on the evidence that the defendants could not be imputed with the knowledge of real facts, and therefore were not debarred from setting up the plea of estoppel.] The following cases have been cited on behalf of the appellant in connexion with the circumstances of the plaintiff being a pardanashin: Geresh Chunder Lahoree v. Mt. Bhuggobutty Debia ('70) 13 M.I.A. 419, Sudisht Lal v. Mt. Sheobarat Koer ('82) 7 Cal. 245, AChhan Kuar v. Thakur Das ('95) 17 All. 125, Annoda Mohun Rai v. Bhuban Mohini ('01) 28 Cal. 546, Sajjad Husain v. Wazir Ali Khan ('12) 34 All. 455, Mt. Farid-un-Nissa v. Mukhtar Ahmad and Tara Kumari v. Chandra Mauleshwar Prasad Singh . Learned Counsel for the defendant-respondents has referred to Mahomed Buksh Khan v. Hosseini Bibi ('88) 15 Cal. 684 and Sikandar Begum v. Zulflkar Wali Khan . We have also read a number of other judgments of their Lordships of the Privy Council bearing on the subject of pardanashins.

20. The law on the subject is not in doubt. To put it briefly, as a pardanashin woman is a person labouring under a disability, the burden lies on those who rely on any transaction to which a pardanashin woman was a party to satisfy the Court by clear, cogent and credible evidence that the lady clearly and fully understood what she was doing and that, after such understanding, she voluntarily and freely did what she is alleged to have done. The burden is no light one. It is the duty of those who wish to rely on any such transaction to convince the Court that the nature of the transaction was explained to and understood by the lady, either before the transaction was entered into, or after it, under circumstances which establish adoption of it with full knowledge and comprehension. At the same time, as has been pointed out by their Lordships of the Privy Council, 'the doctrine cannot be pushed so far as to demand the impossible :' Farid-un-Nissa's case (Mt. Farid-un-Nissa v. Mukhtar Ahmad . The mere declaration by the lady, subsequently made, that she had not understood what she was doing, obviously cannot in itself be conclusive. As their Lordships pointed out in the case just mentioned, it must be a question whether, having regard to the proved personality of the lady, the nature of the transaction, the circumstances under which it came into existence and the whole history of the parties, it is reasonably established' that the transaction was a free and intelligent act of the lady or not. If the answer is in the affirmative, those relying on the transaction have discharged the onus which rests upon them. Fraud, duress and actual undue influence are separate matters. Independent legal advice is not in itself essential. The real point is that the transaction must be substantially understood and must really be the mental act, as the signing of her name is the physical act of the lady. It is hardly necessary to say that it is not, and cannot be the law that a pardanashin woman, merely because she is a pardanashin, is exempt from the operation of all legal rules, even when it is clearly established by the evidence that she is an intelligent and competent person, capable of understanding and conducting business, and that she had voluntarily, deliberately, intelligently and after fully realising the nature and effect of what she was doing, done things on which other people are, under the law, entitled to rely. 'With regard to the question of burden of proof, it is also clear that--apart altogether from the circumstances of a pardanashin lady being involved--it is for the party relying on Section 115, Evidence Act, or Section 41, T.P. Act, to establish the facts which, according to him, entitle him to the benefit of the rules laid down in those sections. We have examined the evidence in this case bearing in mind that the burden lay on the defendants-vendees.

21. On the general question of estoppel, it is not necessary to do more than to refer to the decisions of their Lordships of the Privy Council in Sarat Chunder Dey v. Gopal Chunder Laha ('93) 20 Cal. 296 and A.H. Forbes v. L.E. Ralli and to the decision of this Court in Mata Dayal Lal v. Lalji Sahai : AIR1927All838 . Apart from the plaintiff's consistent course of conduct in the matter of mutation on all the several occasions when the necessity for changes in the entries in the Government records arose and in the litigations which we have mentioned in an earlier part of this judgment, there are three main occasions on which the plaintiff is alleged by the defendants to have done something which, according to the defendants, brings into play the doctrines embodied in Section 115, Evidence Act, and Section 41, T.P. Act. The first of those occasions arose upon the death of the plaintiff's husband, Sheo Prasad. If he was separate from his brother, Basdeo Sahai, it is obvious that the plaintiff's name ought to have been entered in the Government records as the heir of Sheo Prasad. But, as already stated, that did not happen. On the contrary, what happened was that Sheo Prasad's name was removed and Basdeo Sahai's name was shown as the sole owner of the entire property. The case of the defendants-vendees is that this was not done surreptitiously, without the knowledge of the plaintiff, but that it happened, not only with her knowledge, but with her active concurrence. As already stated, the defendants' allegation is that, in the course of the proceedings for mutation which ensued upon the death of Sheo Prasad--such proceedings are often started on the report of the Patwari or of the Qanungo that a recorded cosharer has died and a change in the entries has become necessary--a Qanungo visited the plaintiff at her residence and recorded her statement on 19th January 1919, and reliance is placed on Ex. XXX-1. It is clearly stated there that 'the family is joint and undivided.' The plaintiff's case is that no Qanungo ever visited her and that she never made any such statement. [After considering the evidence their Lordships proceeded.] We have come to the conclusion that the plaintiff did make the statement embodied in Ex. XXX-1 before the Qanungo on 19th January 1919, and that the document was not brought into existence by forgery or by false personation.

22. There remains the question whether the statement was made in consequence of any undue influence exercised upon the plaintiff by Basdeo Sahai. We propose to deal later with the case of undue influence set up by the plaintiff. It is sufficient to observe here that, although it is true that the plaintiff was very young at the time and had recently become a widow, her conduct in connexion with the mutation proceedings which arose on her husband's death has to be taken in conjunction with the consistent course of conduct followed by her during the succeeding nine years. If her conduct on the occasion of those mutation proceedings had stood by itself, a Court would be slow to accept the plea raised by the defendants. That conduct, however, does not stand alone.

23. The next occasion--besides the course of conduct which the plaintiff is alleged to have consistently pursued in the suits of the creditors to which we have already referred in detail--on which the defendants rely is the execution of the usufructuary mortgage deed of 19th June 1923. The deed shows that one of the persons who attested it was the plaintiff, Mt. Sunder Kuer. As has already been stated the plaintiff's case is that the signatures appearing on the deed are not hers and that a forgery has been committed. The defendants have produced Shanker Pal Singh and Phul Chand to prove that the signatures appearing on all the sheets of which this document consists were made by the plaintiff, Sunder Kuer. They have further deposed that the deed was read to the plaintiff and its contents were fully explained to her, and that she put down her signatures on the deed as an attesting witness after she had understood its contents and their effect. Shanker Pal Singh has stated that he himself attested the deed, that he and the other attesting witnesses affixed their signatures in the presence of Basdeo Sahai and that Sunder Kuer also attested it. It may be pointed out that the deed as printed at pages 355-361 does not show the signature of Shanker Pal Singh. This is a mistake which may perhaps be due to the fact that the deed is printed, not in the paper book originally prepared by the office of this Court in accordance with the applications of the parties, but in a supplementary record printed by respondent 1. Both these witnesses have stated that the signatures appearing on the various pages of the deed were made by Sunder Kuer. The learned Subordinate Judge has disbelieved the plaintiff's denial of her signatures on this mortgage deed. We entirely agree with him. In our judgment, the plaintiff's denial is wholly false and the defendants' witnesses mentioned above have spoken the truth. But the mere fact that it is proved that the plaintiff attested this mortgage deed cannot estop her. Attestation of a deed by itself does not estop a person from denying anything except the fact that he has witnessed the execution of the deed. It does not by itself convey any knowledge of the contents of the document, and reliance cannot be placed on it alone for the purpose of establishing that the person attesting the document consented to the transaction which it effects, and knowledge of the contents of the document ought not to be inferred from the mere fact of attestation. At the same time, it is well settled that an attestation may take place in circumstances which would show that the person attesting the document did in fact know all its contents. Now, in the case before us, there is, as already stated, direct evidence, given by the two witnesses mentioned above, which, if believed,, fully establishes Sunder Kuer's knowledge of the contents of the mortgage deed, and her consent to the transaction after a clear comprehension of its nature and effect. [After going through the evidence on the question whether the attestation of the mortgage deed dated 19th June 1923 and the execution of the sale deed dated 15th September 1928, by the plaintiff was done with full knowledge and consent proceeded.] In view of what we have said above, the defendants' allegations must be held to have been established, and the plaintiff's denials and assertions must be held to be false.

24. We thus have the conduct of the plaintiff at the time of the mutation proceedings arising on her husband's death. We have her conduct in connection with the suits of Girdhari Lal etc., Kunwar Man Singh, Hari Shanker Gupta and Nanak Chand etc. There is her conduct at the time of the execution of the deed of usufructuary mortgage dated 19th June 1923. Then there is her conduct on the death of Basdeo Sahai. Lastly, we have her declarations and representations at the time of the execution of the sale deed in question. It has to be borne in mind that the defendants vendees were innocent purchasers who had no reason whatsoever to suppose that these declarations and representations were untrue. There was nothing which could put them on their guard. No amount of inspection of records or enquiries could have revealed anything beyond the existence of the deed of agreement dated 17th May 1917. There was nothing else in existence which could show that a separation had taken place between Basdeo Sahai and Sheo Prasad. Such enquiries as could be made were made. This is proved by the evidence of Phul Chand. We have not been told what further enquiries the vendees could reasonably be required or expected to make. In all the circumstances of the case, it is, in our judgment, impossible to say that the defendants vendees were not justified in believing the declarations and representations made by Sunder Kuer. The result is that the defendants vendees must be held to have discharged the onus that lay upon them. (Their Lordships again considered the evidence in the light of the allegations in the plaint and proceeded.) After a careful consideration of the whole case, we have no hesitation in coming to the conclusion that the plaintiff's case is false and has been sought to be supported by false evidence. We are also of the opinion, in agreement with the Court below, that this suit has really been instituted for the benefit of Rajendra Behari. We agree with the reasons given by the learned Subordinate Judge for this view. The story that there is, or ever was, any ill-feeling between the plaintiff on the one side and Nathia Kuer and Rajendra Behari on the other is clearly untrue.

25. The result is that we agree with the Court below in holding that the suit is barred by the rule laid down in Section 115, Evidence Act, and also that the defendants vendees are entitled to the benefit of the provisions of Section 41, T.P. Act. We have dealt with both the questions under one heading as they were both raised in the Court below by the same issue, viz., issue 2. The Court below also dealt with both the questions together. It may be mentioned, however, that, for the application of Section 115, Evidence Act, the attestation of the mortgage deed of 1923, with full knowledge of its contents, as found above, and the declarations and representations made at the time of the execution of the sale deed in dispute in 1928 are relevant and, for the purpose of the plea based on Section 41, T.P. Act, the entire conduct of the plaintiff, from the time of her husband's death to the date on which the sale deed in dispute was executed, is relevant. We are satisfied on the evidence that the vendees took reasonable care to ascertain that Nathia Kuer had power to make the transfer, and acted in good faith.

26. In view of the conclusion at which we have arrived on the question involved in issue 2, as framed in the Court below, it is not necessary to consider the other matters upon which arguments have been addressed to us. We may, however, briefly deal with the subject-matter of issues 1 and 4 framed in the Court below. We propose to take up the question of limitation first as that question has to be considered upon the assumption that the brothers had separated. Learned Counsel for the plaintiff-appellant has contended that the finding of the Court below, that the plaintiff was not paid any profits by Basdeo Sahai, is incorrect, and has relied on the well known decision of their Lordships of the Privy Council in 1912 Corea v. Appuhamy (1912) 1912 A.C. 230. He has also cited a number of, Indian decisions in which that ruling of the Privy Council has been followed. Now, so far as the payment of profits by Basdeo Sahai to the plaintiff is concerned, we have not the slightest hesitation in agreeing with the Court below that the story is wholly false. There is only the statement of the plaintiff herself in support of it and, as we have already seen, the plaintiff is not a person on whose testimony any reliance can possibly be placed. In addition to that, the story is falsified by the evidence of the plaintiff's own witness, and brother, Nand Kishore. This is what he has stated:

'Mt. Sunder Kuer stayed at Dudu generally after the death of Sheo Prasad.... Mt. Sunder Kuer went to Dudu six months after Sheo Prasad's death. Her total stay at Gangiri amounts to 2 1/4 years or so. After Sheo Prasad's death we met her expenses at Dudu. During that period Basdeo Sahai went to Dudu only once when my father died.... Basdeo Sahai never paid any money to Mt. Sunder in my presence.... Had we not helped her then she might have bean in distress.

27. The plaintiff, who is far more clever than her brother, made the following statements when questioned on this subject:

I cannot say for how many days during the year I live at Gangiri and at Dudu. Nor do I remember the number of months for which I remained at Dudu and at Gangiri. For the last one year and a half, I have been mostly living at Gangiri. Before this, sometimes I remained at Dudu for the major part of the year and sometimes at Gangiri. My expenses of Dudu are sometimes met by my brother and sometimes by me.

28. With regard to the profits, her statements are these:

Pt. Basdeo Sahai was the lambardar of the said villages. He gave me half the profits of the zamindari.... After the sale of Malsai, Basdeo Sahai was paying me the profits of Malsai as well, because Basdeo Sahai used to tell me so. The annual profits given to me in the life-time of Basdeo Sahai were Rs. 2000 or Rs. 3000 minimum and Rs. 4000 or Ks. 5000 maximum. I cannot say what years I got rupees four to five thousand and in what years I got rupees two to three thousand.... Basdeo Sahai used to bring my profits in cash to me and out of that I used to instruct him to pay off the debts of Sheo Prasad. I had told him that he should pay off all the debts of my husband from my income.... Basdeo Sahai has not paid off the debts of Sheo Prasad out of the mortgage and sale considerations of the properties sold or mortgaged. He paid from my income. I cannot say in what years what amount out of my income was paid to the creditors and what was the total amount of my profits and what was paid to me.

Apart from the fact that Nand Kishore's evidence shows that the plaintiff is not speaking the truth, this story of the payment of profits by Basdeo Sahai to the plaintiff is inherently improbable. It is difficult to believe that a man in the position of Basdeo Sahai would pay any profits to the widow of his deceased younger brother. The story is also inconsistent with the case of undue influence set up by the plaintiff. If the plaintiff was under the influence of Basdeo Sahai, as alleged, why should Basdeo Sahai pay anything to her? The plaintiff admits that she has received no profits since the death of Basdeo Sahai. That she should have succeeded in realising profits from Basdeo Sahai, and should have failed to get anything from an old woman, Nathia Kuer, and a child, Rajendra Behari, is a remarkable story. We are satisfied that the plaintiff never received any profits whatsoever. Learned Counsel has further argued that the plaintiff was at least maintained by Basdeo Sahai. In the first place, according to Nand Kishore, she was maintained by him and. his family practically throughout. In the second place, whatever food and clothes Basdeo Sahai or, for the matter of that, Nathia Kuer or Rajendra Behari might have given to the plaintiff must, in view of the evidence already discussed, be taken to have been given on the footing that she was a widow of the family who was entitled to maintenance, and not in recognition of any title vesting in her. With regard to the rulings that have been cited, it may be pointed out that this is not a case of co-owners or co-heirs succeeding to the property of a deceased person. According to the plaintiff's case, she was the sole heir of Sheo Prasad and the only person entitled to Sheo Prasad's share in the property on his death. Basdeo Sahai, when he entered into possession on the death of Sheo Prasad, did so, not as one of several co-owners or co-heirs, but as the sole owner and the only person entitled to the property. The possession of Basdeo Sahai from the very beginning was in assertion of his exclusive title and in denial of the plaintiff's title, and was clearly hostile to her. There was open, clear and effective ouster of the plaintiff at the very commencement. This is not a case of mere non-entry of one name and entry of another, or of mere non-payment of rents and profits. We have here an open assertion of a hostile title by Basdeo Sahai at the very moment when the title of the plaintiff is alleged to have come into being, followed by a consistent course of conduct which is entirely in accordance with that assertion of hostile title. Thus, even if this were to be taken to be a case of co-owners, the only legitimate inference which can in our judgment be drawn from the facts and circumstances of this case is that there was ouster from the very beginning and that the title of the plaintiff if she ever had any was extinguished by the lapse of the statutory period before the institution of the suit which has given rise to this appeal. Learned Counsel for the defendants-respondents has cited a number of rulings, but we need only refer to the decisions of their Lordships of the Privy Council in Varada Pillai v. Jeevarathnammal ('19) 6 A.I.R. 1919 P.C. 44 and in Govind Rao v. Rajabai . The result is that we agree with the decision of the learned Judge of the Court below on issue 4 and hold that the suit is barred by time.

29. We come now to issue 1. The Court below has based its finding, that there had been a separation between Basdeo Sahai and Sheo Prasad, on the deed of agreement of 17th May 1917 and has held that the defendants have failed to prove that the agreement was a fictitious transaction, not intended to be acted upon. That it was, as a matter of fact, not acted upon is clear from the evidence which we have detailed above. The learned Subordinate Judge has held that the oral evidence produced by the plaintiff as to partition and division of the moveables and the houses is 'tutored' and unreliable. We have already expressed our agreement with that view. There is no other evidence. The circumstantial evidence is clearly wholly against separation. It is admitted on all hands that the brothers were heavily indebted when they executed the deed of agreement dated 17th May 1917. The evidence of the plaintiff's witness, Sukhan Lal, shows that lawyers were consulted and that they took a prominent part in bringing about the execution of the deed. Then, again, the brothers executed the deed at Aligarh, and not at Gangiri, and had it registered in the office of the District Registrar at Aligarh and not in the office of the Sub-Registrar within whose circle Gangiri is situated. These facts are not without significance. But, above all, we have the following statement, made by the plaintiff herself in the witness box:

The partition was effected because the property thus partitioned would remain in the family and. would not go out. Each party will have half and half and each party will have it safe.

There are further the declarations and representations made by the plaintiff at the time of the execution of the sale deed in question. They are admissions of the plaintiff and, whatever onus may initially have lain on the defendants vendees, the proof of those admissions shifted the onus on to the plaintiff: Chandra Kunwar v. Chaudhri Narpat Singh ('07) 29 All. 184. The plaintiff has not discharged that onus and has not rebutted the presumption to which her admissions give rise.

30. We are satisfied that the deed of agreement of 17th May 1917 was executed by Basdeo Sahai and Sheo Prasad, not because they ever had any intention of separating from each other, but because, finding themselves heavily indebted and being desirous of saving some portion of the property if possible, they sought for advice and were advised that an agreement like this was likely to be of assistance to each of the brothers in setting up defences in the suits that were expected to be brought by the creditors and might be useful in saving some of the property. The fact that Sheo Prasad fell ill a few months later and died after remaining ill for one year, made Basdeo Sahai the sole surviving male member of the family and thus made the scheme, which had been thought of, infructuous. We are Satisfied that the deed of agreement was purely fictitious, and did not embody any real intention to separate. _ Such an agreement cannot, in our judgment, bring about a disruption of the coparcenary. If any authority be needed for this view, the decision of their Lordships of the Privy Council in Ramanna v. Jagannadha Rao at page 51, furnishes such authority.

31. Learned Counsel for the appellant has in this connexion referred to a sale deed executed by Basdeo Sahai in favour of one Samiullah Khan on 19th September 1925. By this sale deed the entire mauza Malsai was conveyed to Samiullah Khan. The necessity for the sale recited in this deed is the payment of debts and decrees. The following passage occurs in this deed:

A considerable amount of the share of Sheo Prasad, own brother of me, the executant, is included in the amount of the decree of Badri Prasad and others aforesaid. It is incumbent on me to pay the said debts contracted by me as manager of the joint family, for the benefit and lawful necessity of the same (the joint family). In case otherwise, it is strongly apprehended that the property shall be put to auction sale and wasted on account of which serious loss shall be caused to the joint family. In addition to this, Rs. 26,380-15-0 principal, excluding interest, are due under a document dated 16th May 1917 executed by me, the executant, and Sheo Prasad deceased aforesaid, my own brother, in favour of Babu Gulzari Lal, Behari Lal and Banwari Lal, sons of B. Kishori Lal, Vakil, Judge'B Court, Aligarh. Sheo Prasad, own brother of me, the executant, died issueless while he was separate from the family and I, as survivor, am his successor and representative.

Learned Counsel relies on the words which we have underlined (italicised here). It is true that those words favour the contention of the plaintiff. Their effect, however, is nullified by other statements in the deed. In the first place, Basdeo Sahai describes himself in the opening lines of the deed as 'manager of a joint Hindu family.' In the second place, we have, in the passage quoted above, the statement that, if the property would be sold for payment of the debts, 'serious loss shall be caused to the joint family.' In the third place, there is, in the passage quoted, a statement by Basdeo Sahai that he was Sheo Prasad's successor J and representative 'as survivor.' It does not seem to us that the words mentioned above which are relied upon by learned Counsel for the appellant can destroy the effect of all the other evidence in the case direct (e. g. defendants' witness, Salig Ram) and circumstantial, which we have already mentioned.

32. In view of the decision at which we have arrived, in agreement with the Court below, on issues 2 and 4 framed by that Court, we do not consider it necessary to deal with the question involved in issue 5. We may, however, mention that learned Counsel for the parties have not succeeded in explaining to us the details of the process by which the figures of Rs. 10,880 and Rs. 28,143, the total of which is Rs. 38,523, were arrived at by the Court below. The decisions at which the Court below arrived under issues 6 and 7 are clearly correct. It is not necessary to express any opinion on the question raised in issue 8.

33. We notice that we have so far failed to mention one argument put forward on behalf of the appellant. Learned Counsel stated that the plaintiff had succeeded in a suit, previously brought, against the vendees under another deed of sale executed by Mt. Nathia Kuer. He further stated that the pleas of estoppel and 41, T.P. Act, were raised by the vendees in that suit and were decided in favour of the plaintiff. It was further stated that the judgment of the trial Court in that suit was on the record and it was contended that we should read that judgment and follow the decisions contained therein. We were also-told that an appeal by those vendees to this Court was unsuccessful, but that the judgment of this Court having been pronounced subsequently to the decision of the present suit by the Court below, a copy of that judgment could not be filed. It is admitted, however, that the defendants vendees of the case before us were not parties to that suit. We are not able to see how the judgment of the trial Court in the previous litigation against the vendees defendants of that suit can be admitted into evidence against the defendants of the present suit. It was then argued that we should read the judgment of the High Court, pronounced in the appeal of those vendees, as a ruling and should decide the questions of estoppel and Section 41, T.P. Act, against the defendants of the suit before us because the High Court decided those questions against the vendees defendants of that other litigation. We are unable to accept this contention. In order to substantiate a plea of estoppel and a plea of protection under Section 41, T.P. Act, a party had to lead evidence and to prove certain facts. It is only when that evidence is accepted and those facts are found to be proved that the pleas can be decided in favour of the party raising them. We do not know the nature of the evidence produced by the vendees defendants of the litigation on which reliance is sought to be placed. The decision arrived at in that litigation must have been based on the quality and quantity of the evidence produced by those vendees. We have found, in agreement with the Court below, that the vendees defendants of the present suit have succeeded in proving the facts which they had to establish in order to substantiate their pleas. We fail to see how these vendees defendants can, in these circumstances, be denied their right to the verdict of the Court in their favour, because certain other vendees defendants in another litigation, claiming title under a different sale deed, did not produce evidence which could carry conviction to the mind of the Court which had to deal with that litigation. This concludes the consideration of the points which arise in the appeal brought by the plaintiff.

34. We come now to the cross-objections filed by the defendants vendees. Two grounds have been taken. We have already expressed our opinion on the point raised in the first ground. As has already been indicated, the main contentions of the defendants vendees are that the claim is barred by estoppel, that they are entitled to the protection provided by Section 41, T.P. Act, and that the suit is barred by limitation. With regard to the question whether Basdeo Sahai and Sheo Prasad had really separated and of the effect of the deed of agreement of 17th May 1917, the position of the defendants vendees may be put in the way in which it was put by their learned Counsel:

It does not matter to us whether the agreement of 17th May 1917, was a fictitious transaction or not. It is sufficient for our purposes that the plaintiff, at the time of the execution of the sale deed in question in 1928, assured us solemnly that it was fictitious that the brothers had no intention to separate and that they did not, as a matter of fact, separate, and the defendants had no reason for not accepting that assurance.

35. The point raised by the second ground of the cross-objections is that the Court below having found that the suit was barred by limitation and that the plaintiff was not entitled to any relief, a decree for possession conditional upon the payment of a sum of money, on the ground that the plaintiff was a pardanashin lady, ought not to have been passed. It appears to us that this ground is obviously well-founded. Learned Counsel for the plaintiff has not sought to support the view expressed by the Court below under issue 9. His contention has been that the suit should have been decreed as prayed. No authority has been shown for the proposition that there is any rule of law or of equity, which can justify a Court in holding that a pardanashin woman is exempt from the effect of estoppel even though it is found as a fact that she did make the declarations and representations relied upon with a full knowledge of their nature and effect, or from the operation of the provisions of Section 41, T.P. Act, even though her conduct which is relied upon by the other side is proved by the evidence, or from the operation of the statute of limitation. The cross-objection must therefore be allowed. For the foregoing reasons we dismiss the appeal with costs and allow the cross-objection with costs. The suit shall stand dismissed with costs in both Courts.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //