1. This is a plaintiffs appeal from the decree of the Court of the Additional District Judge, Khandwa, in civil suit No. 45-A of 1951, dismissing her claim fo possession and future mesne profits.
2. The plaintiff Hussainabai is the daughter of the defendant's sister Asmabai (P.W. 5) who is the wife of one Nomanali. The defendant was married to Shamsherali of Nagpur who had considerable property. Shamsherali had a daughter Zainabbai by his former wife but had no issues from the defendant. It appears that the defendant took fancy for the plaintiff and brought her up from her infancy. The plaintiff was married to Kadarbhai of Bombay but was divorced in the year 1946. Shamsherali died in 1944 after executing a deed of settlement dated 24th March 1944 (Exh. P. 23) by which he demised the bulk of his property to his daughter Zainabbai and gave two houses, one of Nagpur and the other of Burhanpur, to the defendant. The defendant was also given the net profits from rents of another house at Nagpur till her death or remarriage, whichever took place first.
3. The plaintiff claimed two houses given to the defendant viz., one of Nagpur and the other of Burhanpur, on the strength of a gift deed (Exh. P. 14), dated 28th January' 1947, which admittedly bears the signature of the defendant. That document recites that the gift was made in lieu of affection. It also recites the following:
'Now you are in the sole possession and can do anything. You get it entered in your name and I would also get that done.'
The document was scribed in Hindi by Baldeo (P.W. 6) who is a petition-writer of Burhanpur. It was attested by Salehbhai (P.W. 9), who is the plaintiff's uncle, and by Mohmmad Ali alias Mohammad Hussain (P.W. 7), who is the son of the plaintiff's father's sister. The document was scribed, executed and registered in the house of Asmabai (P.W. 5), mother of the plaintiff: It is also not in dispute that subsequently the defendant revoked the gift by a registered notice, dated 26-4-1948, (Exh. D-21), and latterly executed a registered document, dated 29 May 1950, (Exh. D-24), cancelling the deed of gift.
4. After the execution of the deed of gift, Exh. P. 14, the plaintiff was married to Mohammad Hussain of Ranala in September 1947 and about a month or a month and a half afterwards the defendant also married one Taherali of Malkapur. The plaintiff's case was that as she was in joint possession of the two houses covered by the deed of gift, delivery of physical possession was not necessary. She further claimed that the tenants had attorned to her and she was realising rent from them till April 1948 when she was ousted from the house at Nagpur by the defendant. She further claimed that as the gift was complete by delivery of possession, the deed of cancellation (Exh. D-24) had no effect.
5. The defendant denied that the gift was voluntary. According to her, she developed hysteria after the death of her husband, Shamsherali, as she was leading a secluded life which, during the period of Iddat, proved to be too severe for her. Sometime before 28th January 1947, the plaintiff's uncle Salehbhai (P.W. 9) came to her at Nagpur and represented to her that her sister's husband Nomanali had become seriously ill and that her sister wanted her at Burhanpur to help her during his illness. She accordingly accompanied him to Burhanpur but did not find Nomanali there. She was told that he was lying ill at Bodwad and would be brought to Burhanpur. She, however, soon discovered that that was not a fact and was only a pretext to bring her to Burhanpur. At Burhanpur she was confined in the house of Salehbhai (P.W. 9) for about 15 to 20 days andduring that time she was subjected to coercion and undue influence. Her plea in that regard may be stated in her own words:
'During this period Salehbhai, plaintiff's mother Asmabai and Salehbhai's wife Sukanbai and the plaintiff herself repeatedly represented to the defendant that she was in a state of precarious health as she was now and then rendered unconscious owing to hysterical fits; that she might the at any moment and that in the event of her death her property might be taken away by undesirable persons. The defendant was told every now and then that the plaintiff was a divorced lady, that she was sick and that as she had no property in her name, no offer of remarriage was forthcoming. She was repeatedly exhorted to execute a document in favour of the plaintiff giving her Burhanpur house after her death. The defendant always resisted any idea of executing' any document whatsoever. But a day or two before 28-1-1947 she had an attack of hysteria and she remained unconscious for about 2 hours. After the defendant regained her consciousness the entire family brought to bear on the defendant's mind the imminence of death and urgently pressed her to execute a document in favour of the plaintiff. The defendant resisted the idea and refused to do anything but on 28-1-47 Salehbhai the plaintiff's uncle brought a document that was scribed in Hindi. The defendant does not know Hindi nor can read nor write the same. The said Salehbhai represented to the plaintiff that the document in question related to the Burhanpur house only, that she was to continue to be the owner of, and in possession of the said house till her death, that the plaintiff was to receive the said house after her death and that there was no harm if she affixed her signature to the said document. That the defendant was absolutely in a weak state of mind and mentally unable to understand anything. She was virtually a prisoner in said Salehbhai's house and had absolutely no means to seek any independent advice. Being helpless and being under the clutches of the plaintiff's uncle, her aunt Sukanbai and her mother Asmabai, could no more refuse to affix her signature on the alleged gift deed dated 28-1-47 which was never read to her. Thus the defendant succumbed to the undue influence and misrepresentations practised on her by the plaintiff and her coconspirators, her uncle, her aunt and her mother, and put down her name while she was absolutely in a weak state of mind and was mentally unable to understand as to what she was doing.'
6. The deed of gift was challenged by the defendant on the following grounds:
'(1) That it was not a result of any conscious act on the part of the defendant who was then mentally unfit;
(2) That the gift deed was brought about by coercion, undue influence and misrepresentations practised by the plaintiff, her uncle Salehbhai, her aunt Sukanbai and her mother Asmabai;
(3) That there was no offer of gift of the suit properties by the defendant and no acceptance by the plaintiff; and
(4) That the alleged gift deed was not accompanied with the delivery of possession of suit properties and that the defendant continued in its possession in the same way as before the alleged gift.'
The lower Court found all these points in favour of the defendant and dismissed the plaintiff's suit which was for possession of the houses and mesne profits from the date of the suit until the delivery of possession.
7. It appears to us that the deed of gift does not represent a voluntary transaction. Taking upthe question how the defendant happened to go to Burhanpur, it appears to us that if Nomanali, the father of the plaintiff, was really ill, as the plaintiff says he was, he would have been found at Burhanpur and even if he had fallen ill at Bodwad, her mother Asmabai (P.W. 5) would have been there to attend on him. The plaintiff stated that she had no knowledge that her father was at Bodwad but she also admitted that she would not have got down there even if she had known that he was lying ill at that place.
Although the plaintiff denied the presence of her father at the time of the excavation of the deed of gift, it appears from the evidence of the attesting witness Mohammad AH (P.W. 7), who is her relation, that Nomanali himself had called him to his house to attest the document. It, therefore, appears that Nomanali also came with Salehbhai (P.W. 9) from Bodwad when the deed of gift was executed. This indicates that Nomanali was not ill. Salehbhai doubtless denied that he brought the defendant from Nagpur.
In fact, the plaintiffs attempt was to prove that the defendant came there voluntarily to make a gift of the two houses to her. It is difficult to imagine that she would have gone to Burhanpur to effect the gift when she could have done so at Nag-pur itself. In these circumstances, the learned Judge of the lower Court was right in holding that the defendant was brought to Burhanpur by Salehbhai (P.W. 9) on a misrepresentation that Nomanali was seriously ill and that her sister wanted her help during his illness.
8. The circumstances in which the deed of gift, Ext. P. 14, was executed appear to be peculiar. The document was attested, as already stated, by the plaintiff's own relatives, viz., Salehbhai (P.W. 9), her uncle, and Mohammad Ali (P.W. 7) her father's sister's son. It appears from the evidence of the plaintiff that the defendant's relations were living in Burhanpur. They were her uncles, Inayat Hussain and Akbar Ali, but it does not appear that they were called at any time to enable the defendant to consult them. The deed was scribed in Hindi by Baldeo (P.W. 6) who is a mere petition-writer, although called by the plaintiff by the high sounding name of a pleader. Admittedly, the defendant does not know Hindi.
However, an attempt was made to explain that she had taken steps to understand the contents of the document. It is said that the defendant herself had called Baldeo (P.W. 6) and asked him to prepare a draft. As he did not know Urdu, he wrote the draft in Hindi, which the defendant took to some person and got it transliterated in Urdu to understand its contents. Who that person was is not known. Both these drafts are not forthcoming, although, as stated by the plaintiffs mother Asmabai (P.W. 5), they remained with the plaintiff. It is true that this story is supported by Baldeo (P. W. 6). It, however, appears from his evidence that the defendant is a pardanashin lady. It was not therefore, likely that she had, as is alleged, called him to prepare a draft in the absence of the male members in the house, when admittedly he had never seen her before.
9. Subsequently, the deed of gift, as is admitted by both the plaintiff as P.W.1 and her mother Asmabai as P.W.5, remained with the defendant. If the defendant had voluntarily intended to execute such a document, it appears strange that she should not have done so in the presence of her own relations and delivered the document to the plaintiff as soon as it was executed. How and when this document came to be in possession of the plaintiff is a mystery. In this connection, the evidence of the defendant shows that when disputes arose sometime in the month of March 1948, she discovered that the document was missing from her box. Thereafter, she gave a notice (Exh. D-21) on 26-4-1948 to the plaintiff repudiating the alleged gift. In the absence of any explanation by the plaintiff how she got the document when it remained with the defendant, we see no reason to doubt the latters version that it was stealthily taken away by her.
10. That the parties are pardanashin ladies is a fact which has been admitted even by the plaintiff and her witnesses. It is true that the word 'pardanashin' was not used in the pleadings by the defendant, but it is necessarily implied in her written statement, in which her version that after the death of her husband the led a secluded life during the period of Iddat, clearly indicates that she was made to observe the strict custom of Parda that, as is well known, prevails among the Shia community. In the case of a pardanashin lady the law is settled, namely, that it is necessary to satisfy the Court that she executed the document with full understanding of execution and of the nature and effect of the transaction, and even in cases where she had independent advice the Court will scrutinize the transaction very closely to see that it is a fair one: Nathusa v. Mohammad Siddique, ILR (1941) Nag 418: (AIR 1939 Nag 159). Where the document is not in her mother language, the law further requires that she understood and not merely heard what was read: ILR (1941) Nag 418: (AIR 1939 Nag 159) (supra). These requisites of law are wanting in this case.
11. The plea of the defendant was that she was made to understand by Salehbhai (P.W. 9) and others that she was executing the document in respect of the house at Burhanpur alone, which was to become the property of the plaintiff only after her death. Exh. D-20, dated 1-1-1948, is a letter written by Salehbhai (P.W. 9) to the defendant, which indicates that he was arranging to sell that house on her behalf. The version of Salehbhai (P.W. 9) that the defendant wanted to sell the house to raise money so that the plaintiff's husband, Mohammad Hussain, might invest it in business at Nagpur may or may not be true, but the fact that he undertook to negotiate the sale on her behalf and not on behalf of the plaintiff indicates that she was led to believe that she was the owner of the house during her lifetime. If she had voluntarily gifted the house in praesenti, there was nothing to prevent the plaintiff herself from disposing of the house for the benefit of her husband. The conduct of Salehbhai (P.W. 9) doubtless does not work as an estoppel against the plaintiff but his conduct, when he took a leading part in getting the deed of gift executed by the defendant, is significant and indicates that she was not made aware of the real nature of the transaction.
12. The facts, therefore, are that the defendant was brought to Burhanpur on a false pretext that her sister's husband was ill. She was not allowed to take any independent advice and was made to affix her signature on the document on a misrepresentation that she was making a gift of the Burhanpur house alone to the plaintiff, which was to take effect only after her death. Therefore, apart from the question whether there was delivery of possession of the houses in suit as required by the Mahomedan law, the gift is not a voluntary transaction and is inoperative in law. We may, however, consider the question whether possession was delivered to the plaintiff.
13. We shall first take up the question as regards the house at Nagpur. It appears from the letter of the Secretary, Municipal Committee, Nagpur, to the plaintiff, dated 21-7-1947, (Exh. P. 2), that the plaintiff had made an application on 1-7-1947 for mutation of the house in her name in reply to which she was asked to produce her title deeds. It does not appear that any attempt was made by her to do the needful in order that her name might be mutated. Exh. D-17, dated 30-6-1948 appears to be an application made on her behalf again. Evidently, nothing was done on that application to substitute her name in place of the defendant. In fact, Exhs. D-5 to D-9 and Exh. P. 2 indicate that the taxes were all along paid by the defendant. Inayat Hussain (D.W. 4), son of Kamal Ali, is a tenant of the house. Till the year 1948, he was occupying only the ground floor of the house, but thereafter the whole house was given to him on rent. His evidence shows that he paid the rent of the house only to the defendant and his evidence is supported by the entries in his account books' and also by the rent note, dated 21/22-4-1948 (Exh. D. 28), which was executed by him in her favour. There is no evidence aliunde, therefore, of delivery of possession of the house to the plaintiff or the attornment by the tenant accepting her as the landlord.
14. We now come to the house at Burhanpur. It appears that the plaintiff managed to get the house mutated in her name in the municipal register. This however, appears to have been done sometime after the disputes arose between the plaintiff and the defendant in March-April 1948. Exhs. P. 6, P. 8, P. 9 and P. 10 are the receipts which the plaintiff obtained from the Municipal Committee in respect of the payment of taxes; but these documents begin from 30 June 1948 after the disputes had arisen between the parties. It appears that when the defendant came to know that the plaintiff had managed to get the house mutated in the municipal register in her name, she made an application to the Municipal Committee, Burhanpur, to correct the entry. Exh. P. 13, dated 25-7-1949, is the resolution of the Municipal Committee, correcting the mutation. Exh. D-23, dated 7-4-1948, is the rent note which Abdul Sattar, who was admittedly a tenant of the ground floor, had executed in favour of the defendant.
Julfikar Hussain (P.W. 8), who is a cousin of the defendant, tried to show that he was asked by her to collect the rent from him and pay it to the plaintiff. He was then a student and it appears difficult to believe that the defendant had asked him to collect the rent. This witness in his deposition in the previous suit had stated that for one year he had paid the rent to the defendant: see portion B in Exh. D-26. That belies his present statement that he paid the rent throughout to the plaintiff or her mother since the gift. Exh. D-32 is the deposition of Abdul Sattar in the previous suit which shows that he recognized only the defendant as his landlord and had executed the rent notes on different occasions in her favour. This is confirmed by the rent note Exh. D-23, dated 7-4-1948. Exh. D-31 is the rent note, dated 18-12-1948, which was executed by Abdulla Bhai (D.W. 6) in favour of the defendant after Abdul Sattar left the house. It is thus clear that the evidence of Julfikar Hussain (P.W. 8) that the defendant had asked him to realise the rent on behalf of the plaintiff cannot be accepted.
15. As regards the first floor, it appears that a Muslim library was located in it. Exh. P. 15, dated 1-7-1948 is the rent note which is said to have been executed by Ashik Hussain in favour of the plaintiff in respect of the first floor. Ashik Hussain is the son of the plaintiff's uncle Salehbhai (P. W. 9) an is evidently interested in her. Thisdocument bears the signature of Julfikar Hussain (P.W. 8) as an attesting witness. However, he had pot the courage to admit his Signature or to testify to the genuineness of the document. It must, therefore, be held that the Muslim library continued to be located in the upper floor of the building under the original licence granted by the defendant.
16. It would thus appear that there was no physical transfer of possession or attornment by tenants, nor even delivery of the deed of gift. It was, however, contended on behalf of the plaintiff that as she was in joint possession of the subject of the gift with the defendant, no physical departure or formal entry was necessary. Reliance was placed upon section 152(3) of the Principles of Mahomedan Law by Mulla, 14th Edition, pages 142-143, and the cases cited thereunder, and also upon Maitheen Beevi v. Ithappiri Varkey, AIR 1956 Trav-Co. 268. It would, however, appear that even in a case of joint possession, there must be some overt act by the donor indicating a clear intention on his part to transfer possession and to divest, himself of all control over the subject of the gift.
No such overt act was done by the defendant in the instant case; she did not even get the house mutated in the municipal records in favour of the plaintiff or ask the tenants to pay rent to her. It also appears from the evidence on record that the plaintiff was not living in any of the houses at the time of the gift and that subsequently when she attempted to enter the house at Nagpur, she was ousted by the defendant. Therefore, the gift was not completed according to the Mahomedan Law and transferred no title to the plaintiff over the subject of the gift. In this view, it is not necessary to consider whether the gift could be revoked by the defendant; in fact, not being a valid transaction, there was no necessity to cancel it.
17. The suit was thus rightly dismissed by thelower Court. The result is that the appeal fails andis dismissed with costs.