1. This is a defendants' appeal from the decision of the Additional Subordinate Judge of Banda. The plaintiff-respondent sued to recover possession of a village alleging that a deed of gift which set out that she had given this village to her three brothers in the year 1909, had bean procured from her by fraud, in that one of her brothers, Partap Singh, who was also managing her affairs, had represented to her that the said deed was merely a lease of the land in the village to him, which was necessary in order that he might manage the estate properly. That was the main allegation in the plaint. When the plaint was drawn up it is clear that the plaintiff relied upon that and on that alone. It is true that in the reliefs claimed the plaintiff said that the dead was obtained by practising fraud, bringing undue pressure to bear on her and taking advantage of her being a pardanashin lady.
2. But in the body of the plaint the chief point relied upon was this allegation of fraud. The land was mutated in favour of the three brothers, who after the gift continued to live with the plaintiff until a year or two afterwards. Partap Singh and Kalian Singh are now dead and their sons have been substituted. The only one of the original donees who is alive is Deo Singh. It is impossible for the plaintiff to succeed in upsetting this deed on the ground of fraud on the facts of this case, and in fact the question of fraud was not seriously pressed by counsel who appeared for the respondent. It is obvious on reading the record that on the death of Partap Singh, if indeed there had been any question of a lease having been given for the lifetime of Partap Singh, the question would at once have arisen and the lady would have brought an action to recover her property. Instead of that, she did nothing, and it was only on the death of Kalian Singh later that the plaintiff took any action at all. The action she took was not to allege that the original gift had been represented to her as a lease, but she filed an objection to the mutation of names and in that objection she alluded to the deed as a gift, but stated, contrary to the terms of the deed itself, that the gift was only for the lifetime of the donee. Apparently at that time whoever was advising the plaintiff had forgotten the terms of Section 92, Evidence Act. The action taken at that time is quite conclusive on the question of fraud now raised and relied upon by the plaintiff.
3. However, the respondent has endeavoured to establish her case by relying upon the words used in the relief clause of the plaintiff that undue pressure was brought to bear upon her. There is no evidence on the record of any undue influence. But counsel relies upon the relationship of the parties to raise a presumption of undue influence. We are not inclined to think that there is anything in this case to bring the defendants within Section 16, Contract Act. But we do not need to discuss the matter, because if, for the sake of argument, we agree that there was undue influence to obtain this deed, it is perfectly obvious from the circumstances of the case that the undue influence was removed very many years before the action was brought. The brothers apparently left the plaintiff about 1910 or 1911. The action was only brought in the year 1925. Article 91, Lim. Act, provides that in order to cancel or set aside a document, the action must be brought within three years
when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him.
4. In this case the mere plea of undue influence supposes knowledge. The lady herself had three pairokars, some 12 servants, and she must have known of this deed of gift. We are satisfied that from the date of the gift she never received any profits from the land.
5. We cannot believe her evidence or the evidence of the two witnesses that she called to isolated instances of the receipt of profits, when, according to the plaintiff's own evidence, she had a regular roznamcha maintained by a treasurer, who from day to day made up the accounts, and when those accounts have not been produced. The fact that she did not receive profits is conclusive that she must have known of the deed of gift, and further, when the objection was filed on the death of Kalian Singh, to the mutation proceedings, she admitted that it was filed on her instructions and in that objection the deed was clearly alluded to as a deed of gift. Therefore under Article 91 the plaintiff would have been entitled to have the instrument cancelled or set aside immediately the undue influence was withdrawn. In the well-known authority of Hasan Ali v. Nazo  11 Alll. 456, where it was found that the plaintiff was aware of the existence of the deed soon after its execution, and that if there were any facts entitling him to have it cancelled, those faits were known to him more than three years before the institution of the suit, it was held that the action was barred. It is argued on behalf of the plaintiff that the plaintiff is now suing for possession and would have 12 years in which to bring the suit. But it is impossible for an action for possession to succeed unless the plaintiff gets rid of the document in this case, and to do that she must sue for cancellation within three years of her knowledge.
6. We are satisfied that the plaintiff knew at the time of the deed of gift that it was a dead of gift, and the mere fact that she is a pardanashin lady does not convince us that she did not understand the nature of the document. There is positive evidence on behalf of the defence in this case that at the time of the registration she understood the nature and contents of the document.
7. Further, it has been argued that the evidence of one of the witnesses called for the defendants establishes that the plaintiff did not present the document herself to the Sub-Registrar. We do not feel inclined to accept this one witness's evidence in face of the documentary evidence. There is the endorsement of the Sub-Registrar that the lady herself presented the document. In any event, even if Rana Prasad did actually physically hand over the document to the Sub-Registrar, he did it in the presence and at the request of the plaintiff herself, and we are of opinion that under these circumstances the presentation did amount be a presentation by the lady herself. Counsel for the respondent relies upon the case of Jambu Prasad v. Muhammad Aftab Ali Khan A.I.R. 1914 P.C. 16. At first the decision of the Privy Council appears to support the argument of counsel for the plaintiff. But it appears on referring to the judgment of the High Court Jambu Prasad v. Muhammad Aftab Ali Khan  34 All. 331 that the mortgagors in that case were not actually physically present at the time when their agent handed over the deed for presentation, and that there were concurrent findings by the High Court and the trial Court. That is sufficient to distinguish that case from the one under consideration. The appeal is allowed and the suit dismissed with costs throughout.