1. Having heard learned Counsel for the parties at length, we have come to the conclusion that this appeal must succeed. The suit which has given rise to this appeal was brought by the respondent, Ahmad Kamil Mustafa Khan, and asked for the following relief:
It may be declared that the defendant shall have no right after the death of his mother, Bismillah Begum, or at any other time to get profits of the property made a wakf of by Mohammad Amir Mustafa Khan deceased, of which the plaintiff is a mutwalli, nor shall the defendant have any sort of right to realise any amount of profit of Rs. 200 by virtue of the agreement aforesaid as against the plaintiff mutwalli.
The Court below has decreed the suit.
2. There are certain facts which are not in controversy. There was a gentleman of the name of Amir Mustafa Khan--(we shall for the sake of brevity refer to him in this judgment as Amir)--who resided at Aligarh and owned considerable landed property in the Districts of Aligarh and Etah. His first wife was a lady called--Bibi Fatima Begum (to be referred to hereafter as Fatima). We have not been told when the marriage with Fatima was contracted, and it is not material for the purposes of this ease. The plaintiff, Ahmad Kamil Mustafa Khan (to whom we shall hereafter refer as Kamil) is Amir's son by Fatima and appears to have been born about the year 1908. In 1918 Amir married a second time and the name of this second wife is Bismillah Begum. She will be referred to in this judgment hereafter as Bismillah. This lady had by a former husband a son called Sarfaraz Ali Khan, who is the defendant-appellant in this appeal. We shall refer to him as Sarfaraz. When Bismillah married Amir her son Sarfaraz also came with her to live with Amir.
3. In November 1925 Fatima instituted a Suit No. 314 of 1925, against her husband Amir praying for a decree for rendition of accounts and recovery of whatever might be found due to her from Amir. There was in this suit a compromise between Fatima and Amir on 7th July 1926. This compromise is incorporated in the decree which was passed in the suit and. paragraph 3 was in these words:
As desired by the plaintiff, khula has been effected between the plaintiff and the defendant according to law, and the defendant has made an irrevocable divorce of the plaintiff and thus he has rejected her as his wife and the plaintiff has, in lieu of the khula and talaq, relinquished her claim to the dower debt. Now there does not exist the relation of wife and husband between the parties, and they have severed their connexion with one another for ever, and the plaintiff has no right left to claim the dower debt.
The marriage of Amir and Fatima was thus dissolved and the plaintiff Kamil has stated that, on the expiry of the period of iddat, his mother Fatima married another man.
4. On 3rd July 1926, Amir executed a deed of wakf-alal-aulad in respect of his entire property and appointed himself as the first mutwalli. We shall have to refer to the principal terms of this deed hereafter. On 9th August 1926, Amir executed a deed in which he stated that the dower of his second wife, Bismillah, that had been fixed at the time of the marriage, was Rs. 10,000 that subsequently, about two years before the execution of the deed, he had verbally increased it by Rs. 15,000 and that he now considered it proper to reduce it to writing. The result was that Bismillah's dower was raised from Rs. 10,000 to Rs. 25,000. It may be stated here that by the year 1926, Amir had contracted debts amounting to something like Rs. 2,75,000 and these debts had to be liquidated. It appears that by a deed executed on 31st August 1926, Amir had made a usufructuary mortgage of the property covered by the deed of wakf of 3rd July 1926, in favour of Nawab Sir Mohammad Muzammil Ullah Khan for a term of 17 years. The mortgagee had agreed to pay off, during the period of 17 years, all the debts which Amir had contracted and to pay a sum of Rs. 1600 per month to Amir during the currency of the mortgage. On 3rd November 1928, Amir executed another deed of mortgage in favour of the same mortgagee and borrowed a sum of Rs. 87,000. A cheque for Rs. 10,000 was given by the mortgagee at the time of registration and a sum of Rs. 25,000 was paid by him to Bismillah on account of her dower debt. The mortgagor acknowledged having received the remaining Rs. 2000 before the execution of the deed. Apparently the property mortgaged by this deed was the same as the property mortgaged by the first deed of 3lst August 1926. The term of 17 years fixed by the earlier deed of mortgage was extended by another three years. On 4th November 1928, Bismillah executed a deed, styled as a deed of relinquishment acknowledging receipt from the mortgagee of the entire sum of Rs. 25,000 which was due to her on account of her dower. It was also stated; in this deed that by the wakf deed of 3rd July 1926, she had been granted a right of residence for her life in the kankarwali kothi, situated in the Civil Lines of Aligarh, which appears to have been the main residential house of Amir at Aligarh, and that she relinquished that right of residence in favour of the mortgagee for the period of the mortgage. Bismillah invested this sum of Rs. 25,000 together with some other funds that she possessed, in the purchase of a bungalow at Dehra Dun, and the entire family consisting of Amir, Bismillah, Kamil and Sarfaraz, together with some dependants, left the rented house in which they had been living at Dehra Dun since the execution of the mortgage of 1926 and moved into the house purchased by Bismillah. The plaintiff-respondent has stated that after he left Aligarh for Dehra Dun he 'never came back' to his mother. This shows that, after Fatima remarried, the plaintiff-respondent ceased to have anything to do with his mother and never visited her. It may also be mentioned here that the appellant Sarfaraz has stated that Kamil is older than him by about 2 1/2 years. Sarfaraz was, therefore, born somewhere about the year 1910 or 1911.
5. On 2lst December 1935, a deed was executed in which Amir and the plaintiff-respondent, Kamil, were the first party, grantors, and the appellant, Sarfaraz, was the second party, grantee. We shall have occasion to deal with the contents of this deed in detail hereafter. Put shortly, Amir and Kamil covenanted by this deed to grant to Sarfaraz an annuity of Rs. 2400, payable in 12 monthly instalments of Rs. 200 each. The payment of this annuity was to begin after the death of the appellant's mother Bismillah who, it may be mentioned here, had been granted by the deed of wakf of 3rd July 1926, a sum of Rs. 400 per month for her life. The deed could thus be operative only if Sarfaraz survived Bismillah. Another condition to which the grant of the annuity was made subject by the deed was that it would be operative only as long as Amir, and after him Kamil, occupied the position of mutwalli of the wakf created by the deed of 3rd July 1926. It was also made clear by the deed that it was a personal covenant on the part of each of the grantors, Amir and Kamil, and would not be binding on their heirs. Similarly, it was laid down that the grant was a personal one to the grantee for his life and would not be heritable. The consideration mentioned in the deed was 'the dutifulness, obedience and faithfulness of the grantee' and 'a gold ring and a copy of the holy Quran received from the said grantee.'
6. Amir died on 17th August 1936, and about, two months later Kamil and his wife left Dehra Dun and returned to Aligarh and took up their residence in the Kankarwali Kothi. On 10th February 1938, the present suit was instituted by Kamil with the object, as already indicated, of avoiding the deed of annuity which he, along with his father, had executed in favour of the defendant-appellant on 21st December 1935.
7. The grounds on which the plaintiff based his claim to have it declared that the deed of 21st December 1935, was not binding on him were stated in paragraph 15 of the plaint as follows:
(a) The agreement is in respect of the immovable property and its profits. The entire immovable property is situate in the districts of Aligarh and Etah. The Sub-Registrar of Dehra Dun had no right to register such an agreement or deed of gift. The agreement is altogether ineffectual, (b) Neither the plaintiff nor his father had any right by virtue of the wakf deed dated 3rd July 1926, to give any amount out of the profits of the wakf property. The defendant is a stranger. No right is given to any stranger in the wakf deed in the presence and lifetime of the children of the donor. The donor mutwalli had not reserved for himself any right to make any change or alteration in future in the wakf deed, (c) The plaintiff's getting any amount in future as a mutwalli was only based on hope. The plaintiff could not execute any agreement or deed of gift on the basis of this hope. The agreement aforesaid was executed contrary to the provisions of Section 6, T.P. Act. It is quite ineffectual, (d) The plaintiff neither executed the agreement of his own will nor got it registered. The father of the plaintiff got the agreement executed and signed by the plaintiff on account of influence of Bismillah Begum and the defendant. Such an agreement cannot be binding on the plaintiff, (e) The agreement aforesaid is without consideration. The defendant got wrongly written in the said agreement that a Quran Sharif and a ring had been given.
It was stated in Para. 19 of the plaint that the cause of action for the suit arose on 21st, December 1936--that is, the date on which the deed of annuity was executed-and 'on 26th January 1938, on which the plaintiff came to know of all the facts of the agreement mentioned above at Aligarh'. The defendant traversed the plaintiff's allegations on which the claim was based and pleaded that the deed of annuity in question was perfectly valid and that the plaintiff was bound by its terms. The Court below framed the following issues for trial:
(1) Had the Sub-Registrar of Dehra Dun no jurisdiction to register the agreement in suit? If so, how does it affect the suit? (2) Were the plaintiff and his, father incompetent as mutwallis to enter into this agreement in suit? Is it binding on the plaintiff or not? (3) Does the agreement in suit transfer a mere chance of the succession and is therefore illegal under Section 6, T.P. Act? (4) Was the agreement in suit executed by the plaintiff under the undue influence of plaintiff's father and step-mother and without reading or understanding it? (5) Is the agreement in suit without consideration? (6) Whether the suit is premature? (7) Whether the court-fee paid is sufficient and the suit properly valued? (8) Whether this Court has jurisdiction to try the suit?
8. The learned Civil Judge found issue 1 in favour of the defendant. In doing so, the learned Judge observed that it was inconceivable that every income which had some connexion with land, howsoever remote, should always be held to arise out of land. He further remarked:
The mutwalli is given a fixed allowance and, the minute this allowance reaches his hands, it becomes ordinary money and can be dealt with as such.... The deed does not create any interest in the land covered by the wakf.
The decision on all the remaining issues was in favour of the plaintiff and the suit, as already stated; was ultimately decreed. The learned Judge below dealt with issues 2 to 5 together, and the decree in favour of the plaintiff is based on the conclusions which the learned Judge reached under these issues. As far as we can understand the judgment under appeal, the grounds on which the learned Judge has based his decree are these: (i) That Amir had, after the execution of the deed of wakf, dated 3rd July 1926, 'no disposing power left with him', (ii) That, so far as the plaintiff Kamil is concerned, he transferred, by the deed dated 21st December 1935, what was in the opinion of the learned Judge a mere spes Successions, (iii) That 'the circumstances go to show that plaintiff gave consent (to the deed) because of his father and was out for an opportunity to give it a go-by' and 'plaintiff was not a free agent in executing the deed'. We may take it, as has been argued by the respondent's learned Counsel, that the learned Judge intended to find that the deed in question, so far as the plaintiff was concerned, was the result of undue influence having been exercised upon him. (iv) That the consideration 'is grossly inadequate to support a contract in the absence of natural love and affection.'
9. The findings of the Court below on issues 2 to 5, and also on issue 6, have been challenged before us by the appellant. It has been contended that, in executing the deed of 21st December 1935, Amir did not do anything which in any way affected the property covered by the deed of wakf of 3rd July 1926, and that, therefore, the observation of the learned Judge that after the execution of the wakf in 1926 Amir had no disposing power left with him is of no relevance, that in the deed in question there is no transfer either of spes successionis or of anything else, that the finding that Kamil executed the deed in consequence of undue influence is wrong, that the evidence clearly shows that the deed was executed in consequence of natural love and affection which existed between the parties and also in lieu of the ring and the copy of holy Quran, as has been mentioned in the deed, and that the finding that the consideration was inadequate is incorrect. It has also been urged that the plaintiff had no cause of action for the suit and that the allegation made in Para. 19 of the plaint that the plaintiff came to know all the facts of the agreement at Aligarh on 26th January 1938, is untrue. It has further been argued that the suit is premature.
10. Before proceeding to deal with the arguments that have been addressed to us, we consider it necessary to give a summary of the main terms laid down in the deed of wakf of 3rd July 1926. We have already stated that Amir appointed himself as the first mutwalli. In Clause (2) it is stated that on the death of the executant - the first mutwalli - his son, Kamil, 'shall be the mutwalli and he shall continue as such for the whole of his life'. It is further laid down in this clause that the executant 'shall not be entitled to make any other person but Ahmad Kamil Mustafa Khan mutwalli (of the wakf).' Clause (3) deals with the appointment of mutwallis upon the death of Kamil, either before assuming charge of the office of mutwalli if he died in the lifetime of his father, or after becoming mutwalli in case he survived his father. It also lays down what was to happen if no descendants of the wakif were left in the male line. Clause (i) and its various sub-clauses are important and it is necessary to quote the major portion thereof:
(4) After deducting the revenue, the management and Court expenses, the money spent in making repairs, alterations and additions of the wakf residential property, if any, the remaining income from the wakf property shall be spent by me, the executant, as long as I am alive, according to my wish and discretion towards my food (khur wo nosh) maintenance of my children (apne ahl wo ayal) and on charitable purposes and no one shall have the right to interfere with or question the same. On my death, after deducting the Government revenue the management and Court expenses and expenses made towards repairs, additions, and alterations, etc., the expenses required by the waqf shall be made as follows:
(i) Ahmad Kamil Mustafa Khan, or whoever might be the mutwalli, shall receive Rs. 500 per month as mutwalliship dues (haqq-e-tauliat).
(ii) It will be incumbent upon every mutwalli to spend Rs. 500 on charitable purposes every year.
(iii) If my wife, Bibi Bismillah Begum, survives me, she will receive Rs. 400 monthly for the whole of her life, and no mutwalli shall have the right to make any increase or decrease therein. If she marries with some other man after my life, the said amount shall cease to be paid and she will have no right to receive the same, and after her death her allowance mentioned above shall not be subject to inheritance and this allowance shall stop. She would not be entitled to obtain any other right excepting the allowance aforesaid, nor shall she be entitled to have any right to her legal share in the property made a waqf of.
(iv) For the residential purposes of Bibi Bismillah Begum aforesaid, there is a section in the Kankar House meant for her and she has already been residing therein She would live there for the whole of her life and she is entitled to use the furniture that is to be found therein. After my death, no mutwalli shall have the right to cause any kind of interference in her residence in the house aforesaid or in the use of the furniture lying therein; and after her death the house and furniture aforesaid shall be appropriated as required by this waqf, like the other properties, and the said house and furniture also shall not be subject to any sort of inheritance, and in case of a second marriage also the same conditions shall be applicable as have been mentioned to be applicable after her death.
(v) After deducting the above expenses, the remaining amount of the income shall be spent by Ahmad Kamil Mustafa Khan, for the whole of his life, according to his own discretion, upon the maintenance of himself, his wife and his children (aulad aur ahl wo ayal) as well as on charitable purposes.
(vi) After the death of Ahmad Kamil Mustafa Khan, the remaining income, after the deduction of the above-mentioned expenses, shall be distributed amongst the heirs of Ahmad Kamil Mustafa Khan in proportionate shares, and this procedure of distributing the income of the waqf property shall always and at all times remain in force as long as the progeny of Ahmad Kamil Mustafa Khan is in existence....
11. It will thus be seen that, so far as the waqif, Amir--and his son, Kamil--the plaintiff-respondent--were concerned, they had absolute control over, and were at liberty to do what they liked with, the bulk of the net profits of the property. All that Amir had to do was to pay Rs. 400 per month to Bismillah as long as she lived, and all that Kamil had to do, over and above the payment of the said sum of Rs. 400 to Bismillah for her life, was to spend Rs. 500 per annum on charitable purposes. The haqq-e-tauliat (of Rs. 500 per month) he had to pay to himself. Thus, so far as Kamil is concerned, the position, after the death of Bismillah, and upon the expiry of the term of the mortgage, would be that he would be entitled to appropriate the whole of the net profits minus a sum of Rs. 500 per annum (or approximately Rs. 42 per month) to be spent on charitable purposes. (After discussing evidence, the judgment proceeded.) We thus arrive at the result that the net profits of this property cannot be less than Rs. 36,000 per year or Eupees 3000 per month. It would be convenient at this stage to quote what we consider to be the essential portions of the deed of annuity dated 2lst December 1935. They may be stated to be as follows:
This indenture.... And whereas the said grantor Mohammad Amir Mustafa Khan has got a step-son (the son of his second wife Bismillah Begum) named Sarfaraz Ali Khan, i.e., the grantee, who has throughout been an obedient, faithful and loving son to him and has been a most affectionate stepbrother to the said Ahmad Kamil Mustafa Khan, and whereas the grantors are entitled by the terms of the deed of waqf aforesaid during the term of their respective mutwalliship to appropriate a certain sum for their maintenance out of the income of the trust estate, and whereas the grantors have full disposing power over the said allowance. This Indenture witnesses that, in consideration of the dutifulness, obedience and faithfulness of the grantee and in lieu of a gold ring and a copy of the holy Quran received from the said grantee, the said grantors...do grant by these presents unto and to the use of the said grantee an annuity of Rupees twenty four J hundred, payable out of the allowance to them from the waqf estate aforesaid, one after the other, and payable in twelve monthly instalments of Rs. 200 each, which sum shall become payable to the grantee after the death of his mother, who is, so long as she is alive, responsible for the maintenance of the grantee...provided always that the said annuity shall on no ground be transferable and shall be valid, binding and tenable during the period of continuance of the tauliat of the grantors and shall not be deemed to continue after the cessation of the tauliat by death or otherwise of the grantors and the said grantors do further covenant that, in the event of default in the payment of anyone of the instalments, the said grantee would be at liberty to realize the same by suit together with interest at 12 per cent per annum and all incidental costs...and the grantors hope and expect that the grantee shall as before remain faithful to the grantors....
12. We shall now turn to the grounds on which the Court below has based its decision, which we have already set out, and to the arguments that have been presented to us in connexion therewith.
13. Ground No. (1) need not detain us long. It was conceded before us by the learned Counsel for the parties that, Amir being dead, the question whether he could execute the deed in question is merely of academic interest. Learned Counsel for the plaintiff-respondent has, however, argued that Amir, in executing the deed of annuity, was modifying the terms of the deed of waqf and that he had no power to do so. We consider it sufficient to say at this stage that we are unable to accept this contention and that, in our opinion, the deed of annuity in no way modifies any of the terms of the waqf deed. The true nature of the deed of annuity will be discussed presently when we come to a consideration of the question whether the plaintiff Kamil is bound by the deed.
14. We propose to take up the remaining three grounds in the reverse order to the one in which they are dealt with by the Court below and in which they have been set out by us. Taking, then, the question of consideration first, the whole basis of the learned Judge's finding is his opinion that there could not be any love and affection or cordial relations between Kamil and Sarfaraz. Having formed that opinion, he has held that the ring and copy of the holy Quran could not be adequate consideration for the contract. (After discussing evidence, his Lordship concluded.) The learned Judge's view seems to be that whenever a man has two wives it must be presumed that the second wife is the embodiment of all that is evil and is the wrecker of the life of the first wife who must be presumed to have been the repository of all that is good and gentle and innocent. Is that correct? Are there not cases in which the first wife so treats her husband as to drive him into contracting a second marriage? History may not abound in such precedents, but they are not unknown as the learned Judge seems to think. The point is that the question has to be decided on evidence in each case and not on the basis of a presumption which, if one is to accept the reasoning of the learned Judge below, must be held to be irrebutable. In the case before us, the litigation which culminated in the dissolution of the marriage between Amir and Fatima was initiated, not by Amir, but by Fatima. Paragraph 3 of the compromise, already quoted, opens with the words : 'as desired by the plaintiff.' The suit was for rendition of accounts and for recovery of the amount found due from Amir. One of the terms of the compromise was that Amir was to pay Rs. 6000 to Fatima. These facts are not in accord with the theory of the Court below. Then, again, the fact that, as soon as she could legally do so, Fatima took unto herself another husband, does not fit into the picture painted by the learned Judge. There is really no reliable evidence on this record which can justify the : learned Judge's conclusion that Bismillah was the wrecker of Fatima's 'career.'
15. We have no hesitation in coming to the conclusion that the recital as to love and affection in the deed of annuity is perfectly true and that the finding of the learned Judge below is erroneous. We hold, therefore, that there was valid and adequate consideration for the deed.
16. The next question that falls to be considered is the question of undue influence. We may state at once that there is, in our opinion, neither any proper pleading as to undue influence nor any credible evidence to substantiate such allegations as have been made. There are certain vague statements and insinuations in the plaint but there is no definite, clear and straightforward plea. Paragraph 11 and Clause (d) of para. 15 of the plaint show that the story is that Bismillah and Sarfaraz exercised 'pressure' and 'influence' upon Amir and the latter 'got the agreement executed and signed by the plaintiff.' In para. 12 of the plaint it is stated that Amir 'ordered' the plaintiff to affix his signature to the deed and to have it registered, that 'the plaintiff was quite helpless' and that he 'without any objection and. without reading and understanding the contents of the document affixed his signature to the said agreement and verified it before the Registrar.' It is alleged in para. 9 of the plaint that Amir had been ill J for some years before his death and that he was completely under the influence of Bismillah Begum and could not do anything against her wish, the suggestion apparently being that Amir's prolonged illness had made it all the more easy for Bismillah to bring him under her influence. In para. 8 of the plaint an attempt has been made to make it out that the plaintiff was a helpless dependant and that it was not possible for him to oppose anything that the former wanted him to do. Thus, this story of undue influence is divided into two parts (1) the undue influence of Bismillah upon Amir, and (2) the undue influence of Amir upon the plaintiff-respondent. The two steps of the story are stated by Abbas Khan, a witness for the plaintiff, thus: 'Bismillah Begum had great influence over Amir Mustafa Khan' and 'Amir Mustafa had great influence over plaintiff.' We shall examine each of them separately.
17. As to the first, the learned Judge below appears to think that, whenever a man marries a second time while his first wife is alive, there is an irrebutable presumption that the man is 'in the grips of' his second wife. The only circumstance to which he has referred as supporting his view that Amir was under the influence of Bismillah is the execution of the deed of 9th August 1926, in which Amir stated that he had increased Bismillah's dower from Eupees 10,000 to Rs. 25,000. The learned Judge thinks that this shows that Bismillah 'bestirred herself' soon after the waqf came into existence, that it further shows 'the disfavour with which she looked upon the deed of waqf' and that 'her attempts were to nullify the benefit given to plaintiff.' He does not rely upon any other evidence for the conclusion that Bismillah exercised undue influence upon Amir. We have been taken through the depositions of the plaintiff and his witnesses, Abbas Khan and Haji Fayyaz. Abbas Khan bases his knowledge upon two scoldings which, he alleges, were administered by Bismillah to Amir within the witness's hearing. The story related by him is clearly absurd and unbelievable. The plaintiff too is not a witness of truth and no reliance can be placed upon his statements. But, even if these men are to be believed, their evidence does not establish undue influence. The fact that a wife remonstrates with her husband on his extravagance, even if she does so in a loud voice, does not prove undue influence. The plaintiff's evidence upon this point is grounded upon the allegations that Amir had told him (the plaintiff) that Bismillah was angry as she wanted some money for purchasing some property for herself and that Bismillah threatened Amir, three or four times between 1928 and the date on which Amir died, that she would leave his house. This does not prove undue influence. All that Fayyaz states is that Bismillah used to press Amir constantly for the execution of the deed of agreement and that Amir, after resisting her for some time, ultimately yielded. This witness is a servant of the plaintiff and is wholly unreliable. This is all the evidence. In view of the manner in which the learned Judge below has dealt with this question and in view of the arguments that have been presented to us, we may point out what we should have considered was elementary, namely, that the fact that a man loves his wife and, at her request, gives her some money--even substantial sums of money--or fixes an allowance for her or provides her with a residence, does not prove that the wife had undue influence upon the husband, and that every request even importunity, does not amount to undue influence. It is sufficient to refer to the judgment of their Lordships of the Privy Council in Someshwar Dutt v. Tirbhawan Dutt . As against the learned Judge's theory, it may be pointed out that the execution by Amir of the deed of wakf dated 3rd July 1926, and its contents completely destroy the story of Bismillah's undue influence upon Amir. By that deed Amir made himself the sole master as long as he lived and thereafter Kamil was to be the absolute and unquestioned master of practically the whole estate. All that he gave to Bismillah was a maintenance allowance for life of Rs. 400 per month and the right to reside in a portion of the Kankarwali Kothi during her life. If Amir had been under the domination of Bismillah, this deed of wakf would not have been executed. What the, learned Judge describes as the bestirring of Bismillah was, at the worst, a representation by her to Amir that the right of residence in a portion of Kankarwali Kothi granted to her under the deed of wakf was, in the circumstances that existed, not of much value and that it would be wiser to provide her with an independent house in which she could live as owner and be free from any fear of interference and inconvenience. A share in the Kankarwali Kothi had been included in the usufructuary mortgage executed in favour of Sir Muzammil Ullah Khan on 31st August 1926. Amir himself intended to leave Aligarh and to reside at Dehra Dun. If, in these circumstances, he considered it prudent to enable Bismillah to acquire a house at Dehra Dun--for, that is what he did--does it follow that he was under her domination? It has not been shown to us how the execution of the deed of 9th August 1926--in which Amir recorded the fact that he had raised Bismillah's dower--nullified the deed of wakf. So far as probabilities go, we do not see any reason for holding that Amir was necessarily under the domination of his second wife. She was obviously not a very young girl when she was married to Amir. She had already been married to another man and had a son by that man who was about eight years old at the time of her marriage with Amir. There is no evidence upon the record with regard to her looks. The theory that Amir must necessarily be taken to have been 'in the grips' of Bismillah is, therefore, without any solid foundation. Even if it is taken for granted--in spite of the fact that the evidence produced by the plaintiff is wholly unreliable that Bismillah asked Amir to make some provision for Sarfaraz, does it necessarily lead to the conclusion that she exercised undue influence upon Amir? Was it such an unreasonable request that Amir would not have acceded to it unless he was under the undue influence of Bismillah? By the deed of wakf the entire property had been tied up in perpetuity for the benefit of Amir, Kamil and their descendants. Whatever had been granted to Bismillah was to end with her life. Sarfaraz had been living with Amir since he was eight years old and had been treated and brought up by Amir as his own son. Why must it necessarily be held that Amir's action in making this small provision for Sarfaraz, in case he survived Bismillah, was induced by the undue influence of Bismillah upon Amir? In our opinion there is no justification for such a finding.
18. We turn now to the second part of the story, namely, the undue influence of Amir upon Kamil. Is this a probable story? Kamil was his only son, probably his only child. We have not been shown any evidence indicating that he had any other son, or daughter. Whatever natural paternal affection Amir was capable of must have been centred in Kamil. (After discussing evidence, his Lordship proceeded.) We have no hesitation in coming to the conclusion that the whole story of undue influence is a myth, invented for the purposes of this suit, and that the plaintiff executed the deed in question of his own free will after fully understanding its terms and conditions and appreciating its effect.
19. The only other important question that has to be considered is whether the contention, that the deed of annuity is invalid in view of the provisions laid down in Section 6, T.P. Act, is correct. The learned Judge below has applied Clause (a) of the section. Learned Counsel for the plaintiff-respondent has also stated before us that his 'sheet anchor' is clause (a) of Section 6, T.P. Act.' He has, however, also referred to Clauses (d), (dd) and (f) of the section. The clauses in question are as follows:
(a) The chance of an heir apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.
(d) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.
(dd) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.
(f) A public office cannot be transferred nor can the salary of a public officer, whether before or after it has become payable.
20. It is obvious that, before any of these clauses can apply to a transaction, there must be a transfer of one of the various things mentioned in these clauses. Is there a transfer of anything in the transaction which is in question in this case? Is there not a mere personal covenant on the part of Amir and Kamil to pay to Sarfaraz periodically a certain sum of money as annuity, the payment to begin only after the death of Bismillah and to end with the termination of Sarfaraz's life? Some of the other conditions are that the payment of the annuity would cease on the death of the survivor of the two grantors and that it would also cease if the grantors ceased to hold the office of mutwalli--in other words, if they ceased to receive the income which, under the terms of the wakf deed, was guaranteed to them as long as they held the office of mutwalli--by any cause other than death. To give two examples of such causes : the mutwalli might be removed by the Court for reasons which under the law justify such removal, or the mutwalli might be overtaken by incapacitating illness and might himself resign. The grant was personal to the grantee. We are not able to see any trace of a transfer of anything in the terms embodied in this deed. It is said that, so far as Kamil was concerned, he transferred the chance, the mere possibility of his becoming the mutwalli upon the death of his father. We do not agree. In our judgment Kamil did not transfer the chance or possibility of his becoming mutwalli. What he did was that he undertook a personal obligation to pay to, Sarfaraz every month a certain sum of money, only if and when a certain event took place, namely, he became the mutwalli. He further safeguarded himself by providing that the payment was to be made only as long as he was in receipt of a particular income, namely, the income from the waqf property, over which income, as already stated, the deed of waqf gave him absolute control. It was to be his personal income, funds which would belong to him personally, money with which he could do what he liked. How is this different from a case like this. A gives an undertaking to B that he would pay to B during B's life a sum of Rs. 50 per month if and when he, A, passes the Indian Civil Service Examination and is taken into the service and begins to get a salary, and lays down the condition that the covenant would remain in force only as long as A continues to work, and to receive a salary, as a member of the Indian Civil Service? Is such a covenant, such an undertaking, covered by any of the clauses of Section 6, T.P. Act? Does A transfer the chance or possibility of his passing the examination, or entering the service, or the office to which he expects to be appointed upon his passing the examination, or the salary attached to that office? In our opinion, the answer must be in the negative. Let us take another example, namely, that of a Hindu reversioner which is the commonest case of spes successionis. Suppose, the Hindu female in possession of the estate is 95 years old. The reversioner, being of the opinion that the lady cannot live for more than another five years, gives an undertaking to B to-day that he would pay him for life Rs. 100 per month from January 1949. It cannot be argued that there is anything wrong with such a covenant. Let us next suppose that the reversioner, not being prepared to take a risk by taking it for granted that the female in possession would die by a certain time, does not fix any months and year, but undertakes to pay Rs. 100 per month during B's life and lays it down that the payment would begin after the death of Musammat so and so. He further provides that the covenant would be operative only as long as he, the grantor, continues to be in receipt of the income of the estate which would come to him on the death of Musammat so and so and only as long as he, the grantor, remains alive. Does such a covenant come within the mischief of Section 6, T.P. Act? In our judgment it does not. There is, of course, the obvious circumstance that A, the Indian Civil Service candidate, might never pass the examination or that the Hindu reversioner might die in the lifetime of the limited owner in possession. That circumstance, however, cannot convert what is merely a personal covenant into a transfer. The effect of A's failure in the examination, or the death of the Hindu reversioner in the lifetime of the limited owner in possession, will be that the covenant would cease to exist. The point is that there is no transfer in these transactions.
21. It was argued on behalf of the respondent that the use of the word 'grant' in the deed of annuity in question shows that there is a transfer. We consider it sufficient to say that there is no justification for this argument and that there is nothing unusual in the use of the word 'grant' in respect of an annuity. It was further argued on behalf of the respondent that the fact that it is stated in the deed that, in the event of default in the payment of any one of the instalments, the grantee would be at liberty to realise the same by suit together with interest at 12 per cent, per annum and all incidental costs that may be incurred by the grantee, shows that there is a transfer. The argument, in our opinion, has no force whatsoever.
22. As has already been stated, the learned Judge of the Court below himself held, when recording his finding on issue 1, that the minute the money, which the mutwalli was allowed under the deed of waqf to appropriate, reached his hands, it would become 'ordinary money' and could be dealt with as such. He was of opinion, however, that there was in this deed a transfer of the emoluments which Amir, or Kamil, as the case might be, were to receive as mutwalli. For the reasons which we have stated above we do not agree with that conclusion.
23. There was some discussion at the bar as to the precise significance of the word 'allowance' used in the deed, the point debated being whether it referred only to the sum of Rs. 500 per month which was provided for Kamil as haqq-e-tauliat or it included also the rest of the funds which the waqf deed authorised and entitled him to appropriate. The point is really not of any materiality. It may, however, be pointed out that the word cannot be restricted, as was argued on behalf of the respondent to the sum of Rs. 500, for the Obvious reason that Amir also was one of the executants and no such haqq-e-tauliat is provided for him, and it cannot be denied that there was a possibility that Bismillah and Kamil might die in the lifetime of Amir and the payment of the annuity might have to be made by Amir.
24. In view of the conclusion at which we have arrived, as stated above, it is not necessary to discuss the cases cited in the course of the arguments. It would be sufficient to state that the appellant's counsel referred to Mohammad Hashmat Ali v. Kaniz Fatima ('15) 2 A.I.R. 1915 All. 486 and Umes Chunder Sircar v. Zahur Fatima ('91) 18 Cal. 164 and the respondent's counsel cited the following cases--Amrit Narayan Singh v. Gaya Singh ('17) 4 A.I.R. 1917 P.C. 95, Karusinga Kushansing v. Narsinha Rangrao ('38) 25 A.I.R. 1938 Bom. 121, Joti Lal Shah v. Beni Madho Prasad Singh ('37) 24 A.I.R. 1937 Pat. 280, Dhoorjeti Subbayya v. Dhoorjeti Venkayya ('07) 30 Mad. 201, Ananda Mohan Roy v. Gour Mohan Mullick ('23) 10 A.I.R. 1923 P.C. 189, Bahadur Singh v. Mohar Singh ('02) 24 All. 94, Sumsuddin Goolam Husein v. Abdul Husein Kalimuddin ('07) 31 Bom. 165, Hasan Ali v. Nazo ('89) 11 All. 456, Asha Beevi v. Karuppan Chetty ('18) 5 A.I.R. 1918 Mad. 119, Rebati Mohan Das v. Ahmed Khan ('09) 9 C.L.J. 50, Balmukand v. Tula Ram ('28) 15 A.I.R. 1928 All. 721, Altaf Begam v. Brij Narain : AIR1929All281 and Neti Anjaneyalu v. Sri Venugopala Rice Mill Ltd., Tenali ('22) 9 A.I.R. 1922 Mad. 197.
25. It has further been argued on behalf of the appellant that the stamp duty--Rs. 145--paid on the deed in question also shows that the parties never intended or understood it to operate as a transfer. As we have already found, upon grounds which appear to us to be sufficient, that by the deed in question no transfer was made, we do not consider it necessary to deal with this argument.
26. Learned Counsel for the appellant also contended that, if it is held that there is a transfer in the deed in question, the defendant-appellant is, in the events that have happened, entitled to rely on Section 48, T.P. Act, and laid stress on the illustration to that section. He cited in this connexion the cases in Shyam Narain v. Mangal Prasad : AIR1935All244 , Vithabai Dattu v. Malhar Shankar ('38) 25 A.I.R. 1938 Bom. 228 and Bismilla v. Manulal Chabildas ('31) 18 A I.R. 1931 Nag. 51. In reply to this argument the following cases were cited on behalf of the plaintiff-respondent: Sannamma v. Radhabhayi ('18) 5 A.I.R. 1918 Mad. 123, Radha Bai v. Kamod Singh ('07) 30 All. 38 and Stookley v. Parsons (1890) 45 Ch. D. 51. In view of our finding that there is in the deed in question no transfer at all, we do not consider it necessary to express any opinion on the merits of this contention.
27. Our conclusions on the main points arising in the case being as stated above, it is not necessary to deal with the appellant's argument that the plaintiff had no cause of action for the suit and that the suit was premature. For the foregoing reasons we hold that the suit ought to have been dismissed. Accordingly we allow the appeal, set aside the decree of the Court below and dismiss the suit with costs in both Courts.