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iftikhar Wali Khan and ors. Vs. Sikandar Begam and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1934All179
Appellantiftikhar Wali Khan and ors.
RespondentSikandar Begam and anr.
Excerpt:
- - according to her own allegations, she was not on good terms with the elder of her two sons. iftikhar wali khan, the younger of the two sons, was on good terms with her. in march of the following year (1929), the plaintiff, on her own showing, took forcible possession of the property and instituted the suit which has given rise to this appeal on 10th april 1929. 4. the deed of gift recites that of all her children she had great regard for her son malik iftikhar wali, that she had brought up zulfiqar wali khan, alias majjan sahab, (defendant 2) from his infancy, when his own mother died, and that she desired to make a gift of her property to him out of natural love and affection. its value, according to the deed, is rupees 1,25,000. according to the deed as well as according to the.....rachhpal singh, j.1. this is an appeal from the decree passed by the learned subordinate judge of bareilly in a suit brooght by the plaintiff-respondent, mb. nawnb sikandar begam, for a declaration that a deed of gift, dated 13th april 1928, purporting to have been exeouted by her in favour of her minor grandson, zulbqar wali khan, defendant 2, and a deed of mortgage, dated 19bh february 1929, executed by her son, malik ittikhar. wall khan, defendant 1, as guardian of defendant 2, in favour of lala earn oharan lai, defendant 3, are null and void against her. she has also sued for mesne profits, which were neither valued in the plaint, nor any court-fee was paid thereon. the suit was decreed as against defendants 1 and 2, except as regards mesne profits, and the deed of gift was annulled......
Judgment:

Rachhpal Singh, J.

1. This is an appeal from the decree passed by the learned Subordinate Judge of Bareilly in a suit brooght by the plaintiff-respondent, Mb. Nawnb Sikandar Begam, for a declaration that a deed of gift, dated 13th April 1928, purporting to have been exeouted by her in favour of her minor grandson, ZulBqar Wali Khan, defendant 2, and a deed of mortgage, dated 19bh February 1929, executed by her son, Malik Ittikhar. Wall Khan, defendant 1, as guardian of defendant 2, in favour of Lala Earn Oharan Lai, defendant 3, are null and void against her. She has also sued for mesne profits, which were neither valued in the plaint, nor any court-fee was paid thereon. The suit was decreed as against defendants 1 and 2, except as regards mesne profits, and the deed of gift was annulled. As regards the mortgage deed in favour of defendant 3, the suit was dismissed. The present appeal has been preferred by defendants 1 and 2. The plaintiff-respondent has not questioned the decree so far as it dismisses her claim in respect of the mortgage deed in favour of defendant 3, as to which the decree has become final.

2. The plaintiff was, at the date of the suit, about 60 years of age. She was born in a wealthy family of Bareilly. Her brother, Nawab Mohammad Hasan Khan alias Nabbu Saheb, is alive. She was married to Nawab Saadad Wali Khan of Bateilly, whose family also owned considerable property. The plaintiff inherited some property from her parents, and at the date of gift owned the property to which the deed of gift in question relates. In 1903 there was a litigation between her on one side and her husband and the latber's father on the other. The precise nature of this litigation does not appear from the record of this case ; but it seems to have greatly embittered her relations with her husband's family. It was possibly the result of previously embittered relations between them. Her husband died many years ago, leaving two sons and two daughters by her. They were grown up persons when the deed of gift is said to have been executed by her. One of her' daughters was married to a gentleman named Mushtak Ali Khan of Moradabad. The other daughter was married to' one Abdul Hamid, the son of a Deputy Collector. According to her own allegations, she was not on good terms with the elder of her two sons. According to the evidence in the case, relations between her and her two daughters were also not cordial. Her daughter, Husan Ara Begam, who was married to Mustaq Ali Khan, had a decree for Rs. 13,000 outstanding against her at the date of the gift. The other daughter seldom came to her house. She herself lived in a rented house. The rest of the family lived in her husband's house. Iftikhar Wali Khan, the younger of the two sons, was on good terms with her. The lady looked after the management of her own property through servants. Her supervision was of an extraordinary character, considering her position as a 'pardanashin' lady. Iftikhar Wali Khan's wife died, leaving, among other children, an infant son, defendant 2, who was ten months old at the time of his mother's death, which took place 6 or 7 years be-fore the date of the gift. According to the recitals contained in the deed of gift and the case of the defendants, defendant 2 was brought up by the plaintiff, who had for that reason great affection for him.

3. On 13th April 1928, the plaintiff executed the deed of gift in question, which was registered at her own house. Mutation of names was effected in favour of the donee, whose guardian, defendant 1, was in possession of the gifted property for nearly a year. Husan Ara Begam, her daughter, had village Nakti Narainpur, part of the gifted property, sold in execution of her decree. Defendant 1, acting as the guardian of defendant 2, mortgaged with possession three of the villages, covered by the deed of gift, to defendant 3, and raised Rs. 21,200 and deposited the same towards the satisfaction of Husan Ara Begam's decree and had the sale in respect of village Nakti Narainpur set aside. This transaction was completed with the permission of the District Judge and was given effect to by placing defendant 3 in possession of the mortgaged property. In March of the following year (1929), the plaintiff, on her own showing, took forcible possession of the property and instituted the suit which has given rise to this appeal on 10th April 1929.

4. The deed of gift recites that of all her children she had great regard for her son Malik Iftikhar Wali, that she had brought up Zulfiqar Wali Khan, alias Majjan Sahab, (defendant 2) from his infancy, when his own mother died, and that she desired to make a gift of her property to him out of natural love and affection. Accordingly the deed declared that the donee had been placed in possession through his certificated guardian, Malik Iftikhar Wali Khan. The deed directs that the guardian of the donee should pay her debts charged on the gifted property by making mortgages and sales of such part thereof as may be necessary but that he is not empowered to transfer it for any other purpose and that any transfer which he might make should be with the permission of the District Judge of Bareilly. The deed goes on to provide that the gifted property shall be liable for her maintenance allowance of Rs. 250 per month; but the debts payable by her shall have priority over the allowance. The property is declared to be heavily encumbered. Its value, according to the deed, is rupees 1,25,000. According to the deed as well as according to the plaint, her debts amounted to about Rs. 60,000 on the date of gift. No particulars of the debts can be ascertained from any part of the record, except the evidence of a witness named Ratan Lal, examined on behalf of the defendants. He is a broker, through whom she used to contract debts and whose evidence has been believed by the learned Subordinate Judge. He informs us that she was indebted to the extent of rupees 48,000 to one Ram Sarup. The decree in favour of her daughter, Husan Ara Begam, was for Rs. 13,000. This was a simple money decree; but one of her villages, Nakti Narainpur, which was sold a few months after the deed of gift, must have been under attachment at that time. The sum due to Ram Sarup and Husan Ara Begam amount to nearly rupees 60,000; and the deed of gift probably refers to the two debts above referred to. The sum due to Ram Sarup must have been secured by a mortgage-deed. The recital in the deed of gift that the entire debt is a charge on the gifted property may therefore be taken to be accurate.

5. The principal questions for consideration in this appeal are whether there was an intelligent execution of the deed by the lady and, if there was such execution whether the deed represents her voluntary act. The law on the subject of deeds executed by 'pardanashin' ladies is well settled, and we need only to refer to the comparatively recent case of Faridunnisa v. Mukhtar Ahmad from which a few observations may be quoted with advantage:

Independent legal advice is not in itself essential: Kali Bakhsh Singh v. Ram Gopal Singh (1914) 36 All. 81 After all, advice, if given, might have been bad advice, or the settlor might have insisted on disregarding it. The real point is that the disposition made must be substantially understood and must really be the mental act, as its execution is the physical act, of the person who makes it: Wajid Khan v. Ewaz (1891) 18 Cal. 545 and Sunitabala Debi v. Dhura Sundari Debi A.I.R. 1919 P.C. 24. The appellant clearly had no such advice, nor is it contended that she had. If however the settlor's freedom and comprehension can be otherwise established, or if, as is the respondents' case here, the scheme and substance of the deed were themselves originally and clearly conceived and desired by the settlor, and were then substantially embodied in the deed, there would be nothing further to be gained by independent advice. If the settlor really understands and means to make the transfer, it is not required that someone should have tried to persuade her to the contrary. Again, the question arises how the state of the settlor's mind is to be proved. That the parties to prove it are the parties who set up and rely on the deed is clear. They must satisfy the Court that the deed has been explained to and understood by the party thus under disability, either before execution or after it under circumstances which establish adoption of it with full knowledge and comprehension: Sudisht Lal v. Sheobharut (1881) 7 Cal. 245, Shambati Koeri v. Jago Bibi (1902) 29 Cal. 749 and Sajjad Husain v. Abid Husain (1912) 34 All. 455.

6. We proceed to consider the evidence produced in this case in the light of these observations.

7. The learned Subordinate Judge has laid great stress on the absence of independent advice. It may be conceded that the evidence does not show that the lady consulted any person other than Iftikhar Wali Khan or her servants as regards the transaction. But there is no doubt that she had ample means of obtaining advice, if she stood in need of any. Her 'karinda' Yusuf Ali, who had been in her service for 13 years, is a literate person and could have, if so required, obtained for her competent legal advice in a city like Bareilly. It is said that her brother, Nabbu Saheb, was at Nainital when the deed was executed and that he was the proper person to advise her on the subject. As a matter of fact, the defendants' case is that the matter was under consideration for about a year (p. 39, line 25) and that Nabbu Saheb had been consulted and had approved of the transaction. Nabbu Saheb could not be expected to be called as a witness by the defence in view of the allegation of defendant 1 that it jwaa Nabbu Saheb who was instrumental in the present suit being brought as defendant 1 desired to redeem a certain property in hia possession as mortgagee. The plaintiff might have examined him, but she did not. We do not think that Nabbu Saheb was the proper person to advise her, or that she would have cared to consult him. She says in her evidence:

He Is the brother and I am the sister. In consultation I rely on his opinion. I do not consult him about my affairs. I do my transactions myself: p. 13 line 45.

Again (p. 14, line l):

I used to understand my transactions on my mukhtari am explaining them to me, Whenever 1 executed a mortgage deed or took a loan of money, I never consulted Nabbu Saheb about it.

8. The important question is whether she understood the transaction and acted as la free agent. If this question is answered in the affirmative absence of independent ladviee will not detract from the validity of the gift. In a case like this it is important to consider whether the disposition is one, which a person in her position Sis likely to make and whether a lady of jaer experience, intelligence and character ;was likely to be over-reached by her son, ilftikhar Wali Khan. If these questions are answered in favour of the, defence, a jsfcrong ground will be established for favourable reception of the direct evidence (which shows that. the deed was the result of her own deliberate act and wa3 substantially understood by her. Accordingly we address ourselves to these questions and shall answer them on the evidence given by herself and her witnesses or by such of the evidence adduced by the defendants as is not impeached. (His Lordship then discussed evidence and proceeded.) We have no doubt that she would desire her property to go to Majjan rather than its devolution on all her children according to Mahomedan Law, under which she could not disinherit anyone of them. The prospect of a large share of her property going to her eldest son and the daughter, who had taken out execution of decree against her, would not be acceptable to her. Under her personal law, she could not dispose of her property by will in favour of any of her heirs; and even to one who was not an heir she could not bequeath more than one-third. In these circumstances, a gift in presentae to Majjan with provision for her own maintenance and for payment of her debts was the only course suited to her condition.

9. An examination of the income and the liability of the estate reveals the fact that under the arrangement contained in the deed of gift she is to get as maintenance practically all the profits left after payment of Government revenue, expenses of management and interest payable on debts. Unfortunately the record does not show exact figures but the plaintiff's witness and 'karinda' who used to make collections says that 'the profits are something more than Rs. 8,000.' According to the defence (see D. W. Niazali Khan) gross rental amounts to that sum. Let us accept the statement of the plaintiff's agent, though he has attempted to support her case at the sacrifice of truth and might have exaggerated the income. We take it that by profits he means, as is generally understood, rental less Government revenue. The property consists of seven villages, and some shops. The staff employed in management included a 'karinda', a 'mukhtar' and several 'muquddams' (village headmen). The cost of management in estates managed by ordinary zamindars is allowed for in suits for profits at 10 per cent. (In estates managed by Court of Wards it is more). At that rate Rs. 800 a year is to be allowed as cost of management, including litigation expenses, etc., which together with her maintenance at Rs. 3,000 a year leaves only Rs. 4,200 a year for her debts amounting to Rs. 60,000 due to one Ram Sarup (p. 49, line 8) and to her daughter under a decree. We do not know what interest the debts carried; but taking it at the low rate of 7 per cent it covers the whole of the balance of rupees 4,200. Taking it even at 6 per cent, no more than Rs. 600 a year is left to meet unforeseen expenses and to cover unrealized rents, which must be taken into account. Unless therefore the lady desired to sell her property in whole or part an alternative which, no one suggests, the arrangement was beat suited to her. Her son, Dulare Saheb (defendant 1) had property of his own and was expected to save the property by keeping down interest and paying the principal in course of time and save the family property. We are not surprised to find that K.B. As together Ali Khan was against the acceptance of such an onerous gift (p. 46, line 12). Dulare Saheb assumed a great responsibility in the interest of his minor son. The lady, who was then about 58, -was tc be relieved of worries and cares and remain in the enjoyment of all that could be spared out of her income. The only person to whom such a change of management would be disagreeable was Yusuf Ali, who was likely to be deprived of all influence and opportunities.

10. The plaintiff, was not able to pay off the decree obtained by her daughter several years before, and the sale of one of her villages was imminent. The arrangement, if explained to the lady, would have been acceptable to. her at all times; but the attachment of her village precipitated the transaction. For payment of this decree one of the gifted villages had subsequently to be mortgaged with possession by Dulare Saheb, who 'hypothecated his own property by way of collateral security. The next question is whether the plaintiff was likely to be over-reached by Dulare Saheb, having regard to her character and antecedents. It is true she is illiterate and 'pardanashin ;' but her life for nearly 25 years was one of independence, and her actions were characterised by strong will and ability to look after herself. We have already mentioned that she had a litigation in 1903 with her husband and father-in-law. The nature of that litigation does not appear from anything on the record. She tails us vaguely that it related to her property. Ever since the termination of that case she has lived away both from her husband's family and that of her brother. She has been managing her property just as any male would do. She goes to her villages, where her stay lasts 'for a week or ten days at a time, and collects rent directly from the tenants, to whom receipts are given by her 'karin-das.' She started sugar factories. It does not appear whether they proved to be a source of profit. On her own showing a does money lending business (p. 12, line 49). This does not however appear to be true. She stated it in connection with a topic which related to her resources in money which she desired to exaggerate. Immediately after the gift she personally visited the villages and in. formed the tenants that they should pay rent to her son, Dulare Saheb, who will manage for the minor donee. After a year she made up her mind to take forcible possession from her son and the mortgagee, who came on the scene under a usufructuary mortgage deed executed by the former to pay off the decretal amount due to her daughter and to save one of the villages from passing into the hands of an auction-purchaser. Her performances on the occasion she took possession were remarkable. Neither the son nor the mortgagee, in spite of their being the recorded proprietors could withstand her invasion (we can give no other name to what she did, of the villages and the offices.) Niaz Ali, the defendants' 'karinda' tells us how one day during his temporary absence the lady entered the 'dehra,' broke open the inner apartments and took possession (p. 48). He is corroborated by Yusuf Ali, plaintiff's own servant 1 who began to make collections under her orders (p. 34, lines 40-45). Subsequently she peacefully established her possession. The mortgagee obtained an order from the Tahsildar proclaiming in the villages that rents should not be paid to her ; but she succeeded, in spite of it, to collect rents to such an extent that the learned Subordinate Judge had to find on one of the issues that she was in full possession and could maintain a mere declaratory suit.

11. Another instance which indicates her resourcefulness is the way she conducted herself in the transaction of the usufructuary mortgage. Nearly ten months after the deed of gift the village Nakti Narainpur was sold in execution of the decree of her daughter for Rs. 20,000, believed to be less than its real value. Dulare Saheb settled a loan of that sum to be advanced by Ram Charan Iial, defendant 3, on a possessory mortgage of three villages and a collateral security of some property belonging to Dulare Saheb himself. The mortgagee desired the lady to join in the execution of the deed, as she was in receipt of an allowance under the gift. The lady professed to agree. Her servant Yusuf Ali, who now supports the case on all points, supplied, under her orders, a rent roll and a copy of the deed, both in his own handwriting. They are part of the record. Batan Lal, a broker and Mukat Lal, the son of the mortgagee, tell us what negotiations passed between them and the plaintiff. Both these witnesses have been believed by the learned Subordinate Judge. According to them the lady agreed to join in the execution of the mortgage deed. The gift and her own position in relation to it were freely mentioned in the course of conversation. Matters went so far that the mortgage deed when faired out purported to be on bebalf of Dulare Saheb, as guardian of the donee and the plaintiff on her own bebalf. Permission of the District Judge for the transfer of the minor's property was obtained. As the lady was the judgment, debtor, application for setting aside sale on deposit of purchase money was made on her behalf through a pleader. The money was deposited and the sale set aside, when the period of limitation had almost run out. The deed was registered at the instance of Dulare Saheb a day before the deposit. According to these two witnesses the lady persuaded the mortgagee to pay the money and promised to have the deed registered, but subsequently refused. Eatan Lal says:

I went to Begam Saheb. She said that she had given an application and the sale was set aside. There was no need for her to register then.

12. In less than two months she instituted the present suit impugning the gift and the mortgage. She denies all knowledge of the mortgage transaction ; but we have no doubt she is not telling the truth. As for the suit, she says:

I consulted my own self about this suit, because my livelihood had gone. I have also got other people to advise me, but I did not consult them.

13. If the idea of instituting a suit shortly after the mortgage transaction was hers, and we believe it was, the inference is irresistible that she made a very cunning move to have the auction sale set aside at the expense of the mortgagee and then to impugn the mortgage and the gift. The mortgagee ran a grave risk. If the gift failed, his only chance was to rely on his plea of estoppel supported by nothing better than his son's evidence and that of a broker, Ratan Lal. The manner in which she asserted herself at the time of registration of the deed of gift is another proof of her capacity to take care of herself. We shall discuss in another connection as to whether the deed was in reality not according to her instructions and she made a timely discovery of a fraud that was to be practised on her, or whether it was an after thought on her part to alter the terms of the gift. In any view of the matter, it is clear that she spotted the clause in the deed which she desired to be altered and had her wishes recorded.

14. We have examined the language of the original deed and feel satisfied that it does-not contain such Persian and Arabic words as she could not understand or are such as would prevent her from having a full comprehension of the substance of the transaction if the deed is merely read out to her; it is to be borne in mind that the lady, though illiterate, was born and' brought up in a Mahomedan aristocratic family residing in the city of Bareilly, The mothertongue of this class of persons, both males and females, has a good mixture of Persian and Arabic words. Theirs is not one of the dialects spoken by Muslim inhabitants of villages but is a very near approach to the Urdu languaga in common literary use. Her evidence gives ample indication of-her capacity to hold her own against counsel and even to-snub him occasionally. The plaintiff's allegation that Dulare Saheb managed to bring her under his domination is, in our opinion, unfounded. That of all her children he was in her good looks may be conceded, but it is not correct to say that, apart from any positive fraud or misrepresentation, he could persuade her; to do what she was reluctant to do. Nor can it be said that for fear of incurring: his displeasure she would do anything, which she did not approve of. This is clear from her conduct at the time of registration and again when she backed out of the mortgage transaction, and still later when she forcibly dispossessed him. On the contrary, she did not depend on Dulare Saheb for any of her requirements. The learned Subordinate Judge has expressed the following opinion about her character and capacity:

From a perusal of her statement and all that is said about her, it does appear that the plaintiff is a strong-willed lady, but circumstanced as she is, she is liable to all the disabilities from which Indian 'pardanashin' ladies suffer, and probably her strong headedness lands her all the more in troubles. It is clear beyond doubt that her relations with the eldest son and the two-daughters are not good, and therefore leaving, her own house she prefers to live in a rented house at a considerable distance from her sons. The only two persons from whom she could have= taken advice in the matter are her brother Nawab Nabbu Sahib, and her younger son, Malik Iftikhar Wali Khan. The latterwas interested in the matter, and the allegations are that he took advantage of the situation, and about the former the plaintiff avera that he was never consulted. No doubt Malik Iftikhar Wali Khan does assert that he talked to Nabbu Sahib, who approved the idea of the gift, but even he has not the courage to say that Nabbu Sahib was ever consulted about the form which the deed of gift was to take. This leads one to the inevitable conclusion that the plaintiff had no independent advice in the matter.

15. While it is true that an obstinate but a foolish 'pardanashin' woman is in need of protection against herself in dealing with others, thera is no indication that she is a lady of that turn of mind. It seems to us that the learned Subordinate Judge has laid too great a stress on the absence of independent advice and acted on the view which prevailed before the case of Kali Bakhsh (2) and according to which such advice was essential, apart from the question of the deed being understood by the lady. As we have already said, the most important question is whether the provisions of the deed represent her wishes at the time. If it is answered in the affirmative, no question as to independent advice can arise in the circumstances of this case.

16. Now, the evidence which is not questioned leaves no ground that the execution of the deed was not a hole and corner affair. The whole transaction was carried through openly and its completion took a sufficiently long time. Yusuf Ali, her 'karinda' was all the time about her; while Dulare lived at a distance. She executed a special power of attorney in favour of Yusuf Ali for the purchase of stamp. The exact date of this document does not appear, as it has not been produced probably because it was filed when the stamp was purchased. Khan Bahadur Asghar Ali Khan has given evidence as to what happened when she verified it before an Honorary Magistrate, Akhtar Hussain Khan, who was taken to her house for the purpose. She said on that occasion that she desired to execute a deed of gift in respect of her property in favour of Majjan Saheb. Yusuf Ali purchased the stamp on 12th April 1928. How the draft was prepared and how the deed was executed are matters in controversy and may be left aside for the present. On 16th April 1928 she presented the deed before the sub-registrar and put her seal tinder the registration endorsement, which recites that the deed had been 'read and explained' to her.

17. The deed is a simple document. After the) preamble it recites, in the first clause that she had brought up Majjan Saheb from his infancy and had great affection for him. The second and third clauses-declare the gift and vesting of title in the-donee. The fourth clause makes the donee liable for her debts and forbids all kinds of transfers by the guardian, except for payment of her debts and with the permission of the District Judge. Clause 5 de clares that the donee shall have all powers of transfer on attaining majority. ,Clause & declares that the property shall be liable to pay maintenance allowance to her act the rate of Rs. 250 a month and proceeds to lay down that debts shall have priority over her maintenance. The debt and the allowance being both charged or the gifted property it is clear that the' debts must have priority. The seventh? and the last clause declares the value of the property after making allowance for encumbrances.

18. It will be seen that the only thing, which she need have understood was that she gave her property to her grandson who was to be liable to discharge the encumbrances and pay her allowance. The rest of the deed is either verbiage or imposes restriction on the donee's guardian which are for the benefit of the estate.

19. Her own case in the plaint shows that she had understood the deed to be to that effect. But it goes on to allege that the understanding was that the deed would be 'fictitious and that the property would be returned to her after the debts are paid up.' All this was, on her own showing, extraneous to the deed, and constituted her case of positive fraud. From what she-said before the ' sub-registrar and the. whole of her subsequent conduct as ad , mitted by her and her own witnesses, there is no doubt that she had a dear understanding of the deed. On the deed being read and explained by the registering officer, she said:

The sum of Rs. 300 and not Rs. 250 has been agreed upon to be paid. It has also been agreed upon that, apart from the monthly amount, grain and fuel, etc, will, in accordance with my expenses, also be supplied to me. This fact has-not been mentioned in the document. I accept, the said deed of gift subject to the conditions, and the statement. If any breach of contract as regards any of my rights is committed, I shall;. have right to have the deed of gift cancelled in toto.

20. As to whether hers was the correct version will have to be examined; but it is clear that she understood that it was 'deed of gift' and was desirous of effect being given to it subject to the amendment mentioned by her. Almost immediately after the registration she evinced great enthusiasm and went to the villages (with the donee, according to the defence) and proclaimed the fact of gift. Mutation of names followed. The donee remained in possession for nearly a year, during which time she did not interfere with collections. When the village Nakti Narainpur was sold in execution of her daughter's decree and Dulare Saheb settled the transaction of usufructuary mortgage, she had, more than once, conversation with the broker and the son of the mortgagee, to both of whom she mentioned the gift. Prom all these circumstances, apart from the direct evidence to which we shall presently refer, it is clear that she had no misunderstanding about the terms of the gift made by her. (His Lord-ship then considered the direct evidence as to the circumstances in which the deed was executed and proceeded.)

21. When the sub registrar read out and explained the document to the lady, she protested that

the sum of Bs. 300 and not Rs. 250 had been agreed upon. It has also been agreed upon that apart from the monthly amount grain and fuel etc., will, in accordance with my expenses, also be supplied to me. This fact has not been mentioned In the document. I accept the deed of gilt subject to the conditions and the statement. If any breach of contract as regards any of my rights is committed, I shall have right to have the deed of gift cancelled in toto.

22. This statement of hers is strongly relied on by her as indicating that a fraud was attempted to be practised upon her. This view has found favour with the learned Subordinate Judge, who thought that 'some kind of misrepresentation was made to the plaintiff.' We are of opinion that the learned Subordinate Judge has not based his conclusion on this part of the ease on a careful consideration of all the circumstances. The defendant, Dulare Saheb, has emphatically denied that any such understanding as was referred to by her at the time of registration ever took place. We shall hereafter deal with the evidence of the plaintiff and that of Dulare Saheb, which are in conflict with each other on many other points, and we shall also hereafter deal with the question as to who should be believed. As to whether her declaration at the time of registration represented the truth or was an after, 'thought is the only question we propose to discuss at this stage. In an earlier part of this judgment we have given figures of income and liabilities of the plaintiff's estate and find it difficult to believe that Dulare Saheb agreed to pay as much as Rs. 800 a month besides grain and fuel.

23. The plaintiff's declaration at the time of registration can be true only on the hypothesis that she was not aware of, and had no opportunity of acquainting herself with, the contents of the deed of gift. We have shown that the draft was prepared under instructions supplied by her 'karinda' Yusuf Ali, who was throughout in her service, and the deed itself was in her possession for several days after its execution till registration. We are unable to believe that Dulare Saheb could count on the possibility of the plaintiff not being able to detect his fraud, to conceal which he did not take the slightest trouble. He allowed Yusuf Ali to have the draft prepared and left the deed in possession of the plaintiff for several days. In this connexion it should be borne in mind that Dulare Saheb himself lived at some distance from the plaintiff's bouse. He would have tried to win over Yusuf Ali if he had the slightest intention of successfully deceiving her. It is not suggested, even by Yusuf Ali, that Dulare Saheb took any such precaution. We have already referred to the circumstances which show that the transaction, from its inception to its completion, was carried through openly and without any attempt at secrecy. Yusuf Ali who denies all connexion with the transaction except in so far that he could not do so in view of the documentary evidence, does not suggest that the draft, which was prepared under his instructions, contained a provision for the lady's maintenance as she asserts, and not merely Rs. 250, which sum was subsequently entered in the deed.

24. The plaintiff's conduct at the time of registration and immediately afterwards is wholly inconsistent with the theory that she discovered the attempted fraud when the deed was read out and explained to her at the time of registration. If such had been the case, the most natural thing for her to do would have been to refuse to have the deed registered. On the contrary, we find that she had the deed registered instead of being indigmarit at the action of her son. Almost immediately she went round to the villages with the alleged perpetrator of the fraud and the donee and declared the gift to her tenants and 'muqaddams.' While the circumstances, to which reference has been made above, strongly negative the theory of fraud, we are not unmindful of the other side of the ease. Some explanation ought to be forthcoming as to why she demanded Rs. 300 a month with grain and fuel, etc., at the time of registration, if she had understood previously that her maintenance had been fixed in the deed at Rs. 250 a month only. Dulare Saheb's explanation is that Yusuf AH induced her to demand Rs. 300 a month, besides grain and fuel. The learned Subordinate Judge has noli accepted this explanation, as he did not consider that

the plaintiff is such a fool as to make such a statement on the suggestion of Yusuf Ali.

25. But the view that he took is destructive of his reason, as the plaintiff has to be assumed to be 'such a fool' as not to acquaint herself with the contents of a document which affected the whole of her property which had been in her possession and which she could have had read out and explained to her before executing it. 'While we agree with the learned Subordinate Judge that she would not have repudiated a clause in the deed only be cause Yusuf Ali so wished, we are inclined to think that Yusuf Ali could so represent matters to her by quoting facts and figures as to make her believe that there was sufficient margin for enhanced maintenance 'being allowed to her. This was probably done shortly before the deed was registered. She could not very well have said before the sub-registrar that she desired to alter the deed which had already been executed, and preferred to say, not truthfully, that the understanding was that she would have maintenance at a higher rate than that entered in the deed. In our opinion her subsequent enthusiasm to give effect to the deed by taking the donee to the villages was partly intended to placate her son, who would naturally feel aggrieved at her conduct. The explanation given by Dulare Saheb is one as to which no direct evidence, except that of the plaintiff and Yusuf Ali, is possible. So far as Dulare Saheb is concerned, he can only give his inference from the circumstances town to him. He awears that Yusuf Ali demanded a higher salary, which he refused to agree to. Yusuf Ali denies this. As between the two we have no hesitation in believing the former. The latter's evidence is a tissue of falsehood, as we shall show when we come to deal with it. Dulare Saheb's story is consistent with probabilities. We have it in the evidence of Yusuf Ali himself that his services were not retained by Dulare Saheb and he continued in the service of the plaintiff, apparently with no defined duties. He was an old servant of hers and was in charge of collections till 1923, when he was called to the headquarters, where he remained till he resumed the work of collection when the plaintiff regained possession from the donee. It was he who took an active part in the transaction of gift, having purchased the stamp and having had the draft prepared, besides otherwise contributing to the completion of the transaction. We think it likely that a man of the position and character of Yusuf Ali would, in return, ask Dulare Saheb to give him an enhanoed salary possibly as a reward for putting no obstacle in the way of the gift being made. It is equally likely that Dulare Saheb did not agree to recognize his services. That there was misunderstanding between the two, may be inferred from the fact that Yusuf Ali was not retained by Dulare Saheb. Yusuf Ali might have told the plaintiff that he was not retained by Dulare Saheb, because it was suspected that it was at his instance that the lady repudiated the clause relating to her maintenance. The lady kept him on; and according to himself, the work that he did was 'to scribe letters, etc.' Other servants employed in the management of villages continued as before. This may be inferred from the statement of Yusuf Ali, p. 33, line 34. It seems to us that only two hypotheses are possible on this part of the case , namely : (1) that the plaintiff was kept in the dark about the contents of the deed of gift till the registrar read it out and explained it to her; or (2) that she decided shortly before the registration to demand enhanced maintenance. In all the circumstances to which reference has been made above, we do not think the first hypothesis can be reasonably accepted. The learned Subordinate Judge has not discussed the evidence of the principal witness in the case in detail. We think in a case like this it is essential to examine carefully the evidenoe of Dulare Saheb, the plaintiff, and Yusuf Ali. (His Lordship then discussed the evidence of these three persona and concluded.) Our conclusion, after a careful consideration of the evidence and the probabilities of the case, is that the lady had known and understood all the terms of the deed, as stated by the witnesses produced on behalf of the defendant, and that her case that the deed had never been read out or explained to her cannot be accepted. We are also of opinion that her son was not in a position to dominate her will and that she entered into the transaction voluntarily. The next question we have to consider is the effect of the modification introduced by the plaintiff at the time of registration of the deed. It may be contended that the deed having been previously executed, any subsequent declaration by the executant cannot affect its contents and that, at best her statement before the sub-registrar was no more than an allegation that a certain understanding had been arrived at between the donor and the donee's guardian, which has not been given effect to by the deed. As we have found that no such understanding was ever arrived at, it was no part of the transaction of gift originally settled and reduced into writing. At the same time, it should not be overlooked that the essential part of a gift, under Mahomedan law, is delivery of possession. It was open to the plaintiff to revoke the gift before delivery of possession. She could, without expressly revoking the gift, practically annul the transaction by withholding possession of the property to the guardian of the minor. If, before delivering possession, she declared certain conditions, subject to which alone the donee could take it, and the latter's guardian, with full knowledge of those conditions, accepted the gift and took possession of the property, he must be deemed to have accepted the conditions imposed by her. It was open to her to have refused to accept the gift subject to the conditions which she chose to lay down. Unless therefore the conditions mentioned in the registration endorsement are inadmissible in evidence and cannot be proved, the donee is bound by them, though they did not form part of the transaction as originally settled between the parties.

26. We do not think the modification of the deed, mentioned in the registration endorsement, can be ruled as inadmissible, and extraneous to the deed. It cannot, in our opinion, be regarded as a separate oral agreement inconsistent with the written instrument, viz., the deed of gift. In our opinion it is correct to regard her declaration, which has been reduced into writing and made part of the registration endorsement as an integral part of the deed. The fact that it has found a place on the back of the stamp paper and not on the front page makes no difference. The statement is above her signature appearing under the registration endorsement, followed by the signatures of several witnesses, including that of Iftikhar Wali Khan, the guardian of the minor donee. In these circumstances, we think that the conditions added by the plaintiff at the time of registration are admissible and binding on the donee.

27. The next question is whether the plaintiff was entitled to revoke the gift in pursuance of the condition that, on breach of any stipulation, the donor had the right to cancel the gift. The plaintiff's case is that no payment was made by the guardian of the donee towards her debts or maintenance and that, for that reason, she was entitled to annul the gift and to take possession of the property. There is nothing in the deed which makes it incumbent on the donee to pay the debts within any given time. Nor is there any provision to the effect that, in case of non-payment of the debts, the donor would be at liberty to revoke the gift. The deed conveys the property to the donee subject to the liability for payment of her debts, which were charged on the property in the hands of the donee. We do not think that the plaintiff had a right to revoke the gift on the ground that her debts had not been paid in full. As regards her maintenance-allowance, including grain, fuel, etc., the condition imposed by her at the time of registration is clear. She stated expressly that, in case default was made by the donee in that respect, she would have a right to cancel the gift. We do not consider it necessary to express any opinion on the question whether such a condition is valid under Mahomedan law, as in our-opinion the plaintiff has failed to establish that any default was made by the donee's guardian in paying her maintenance allowance. (His Lordship then considered the evidence and proceeded.) Unless we assume that the plaintiff had some money hoarded by her, she had no other source than that described by Iftikhar Wali. Taking the evidence of Iftikhar Wali and that of Niaz Ali and Yusuf Ali with the circumstances referred to above, we hold that, after payment of Government revenue and other expenses incidental to the management of the property practically the whole of the spare income found its way to the plaintiff, as is stated by Iftifehar Wali Khan, and that her statement that she did not receive anything towards her maintenance allowance cannot be accepted. We are unable to accept the view of the learned Subordinate Judge when he says:

The receipts, no doubt,1 bear the seal of the plaintiff, but actual payment of money in her hands is not proved. I have great doubts if this money or any portion of it was actually paid to the plaintiff.

28. Unless we accept the plaintiff's case that her seal was with Dulare Saheb, who affixed it on forged receipts, we do not think that the view expressed by the learned Judge can be supported. The learned Judge has not gone the length of accepting the plaintiff's story. Ha has a vague suspicion that somehow receipts came into existence without payments being made. We do not think that a finding to this effect, without reference to the reasons for arriving at it, can be held to foe satisfactory.

29. To sum up our findings, we hold that the transaction embodied in the deed of gift in question is one which a person in the position of the plaintiff would naturally approve of, that she fully understood the deed and executed it voluntarily that no such breach of any of the conditions of the deed as would justify its cancellation occurred and that the plaintiff was not justified in taking forcible possession of the property from the donee and his mortgagee. It is not quite material to ascertain the reasons which led her to resume possession of the proparty. We are inclined to think that the plaintiff, who was for many years accustomed to exercise acts of ownership, and her servant Yusuf Ali did not relish, after nearly a year's experience, that loss of their position. It may also be that tales were carried to her of large sums of money received by Dulare Saheb and she thought that Dulare Saheb ought to have satisfied the decree out of these sums. As a matter of fact she alleges that people told her that Dulare Saheb had realised as much as Rs. 25,000. There is not the slightest evidence in support of this allegation ; but it is not unlikely that interested persons gave her to understand that such was the case.

30. The result of our above findings is that the deed of gift must stand. Iftikhar Wali Khan has since died and it may not be very easy to find for the donee a suitable guardian who would satisfactorily discharge his obligations under trie deed of gift. This however is a matter with which we are not concerned in the present case. In the view of the case' we have taken, this appeal is allowed, and the plaintiff's suit is dismissed with coats.


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