Abdur Rahim, J.
1. The appellant, who is a minor, instituted the suit by her next friend, her father, to recover certain properties from the respondent-defendant, her husband. Her title is based on a deed of gift executed by Krishna Kampti, the adoptive father of the respondent, who died on the 17th April 1909. The defence on the merits, broadly speaking, was of two-fold character. Firstly, that the alleged deed of gift was executed under the undue influence of the appellant's father who procured it by means of mis-representation and fraud and secondly, that the contemplated gift was never completed according to law and was in fact revoked by Krishna Kampti before it could be completed.
2. Krishna Kampti, who was possessed of considerable properties, moveable and immoveable, was an inhabitant of a village called Karingan in the South Kanara District. He adopted the defendant when he was only 9 months old and until shortly before the date of the transaction in question, the defendant and his first wife lived in the same house with Krishna Kampti and his wife on the best of terms. The defendant, however, had no child though he was nearly 39 years old and his wife about 33. Krishna Kampti, who was 70 years old in 1908, being concerned that his son had no issue conceived the idea of marrying him to a second wife. The defendant was much attached to his first wife and did not want to marry again; but he was at last prevailed upon to marry the plaintiff who was at the time a girl of 11 years, she being the daughter of Krishna Kampti's wife's brother, one Ramayya Shanbhoga. The case of the defendant is that this Ramayya Shanbhogu had much influence over Krishna Kampti, that even before the marriage actually took place, he had formed designs with regard to Krishna Kampti's properties and that it was he who by means of misrepresentations and unfair devices succeeded within a few months of the marriage in alienating his father's affections from him and misleading his father to execute documents, the effect of which on his own and the family's interest he did not fully realize. The plaintiff's marriage with the defendant was brought about on the 9th March 1908, and according to custom, she came and lived in the house of the husband for a few days. Then she went back to her father's house; 10 or 15 days afterwards, the defendant was asked to go and fetch her. The case of the plaintiff is that instigated by his first wife, he refused to do so and thereupon the old man Krishna Kampti was very angry and in order to coerce the defendant to submission or to punish him and to make provision for the plaintiff, decided upon making a gift of his share of the immoveable properties to her. He consulted his lawyers (the 2nd and 3rd witnesses for the plaintiff), and upon their advice had a deed of partition drawn up and also a deed of gift of the immoveable properties which fell to his share. The defendant's version of what occurred was that it was the plaintiff's father who persistently maligned him to the old man and by means of various false representations and insinuations worked upon the mind of Krishna Kampti to such an extent that he did not in fact know what he was about. The defendant says that he did not refuse to bring the plaintiff back to his house when asked by his father, but only delayed doing so as his first wife's father was seriously ill and he wanted to see him, that in fact it is not the custom for immature girls of the plaintiff's age to live in the husband's house but that, among Hindus of his caste, girls before the attainment of puberty live mostly in their father's house. He says that there was nothing unreasonable in what he did and his conduct could not give offence to any reasonable man. It may be that Krishna Kampti, in compelling the defendant to marry a second wife in the lifetime of his first wife to whom he was evidently much attached and afterwards taking offence at the hesitation or delay displayed by the defendant in bringing the plaintiff back from her house when asked to do so, was acting arbitrarily and harshly. But if the alleged gift to the plaintiff was a true, well-understood and voluntary act of Krishna Kampti's mind, no legal objection can be taken to it merely on the ground that it was such as would not be expected from a man of ordinary prudence. An owner of property is entitled to dispose of it as he pleases and the validity of his disposition does not depend upon whether it is prejudicial to himself or to his relatives and heirs.
3. The point for consideration is whether the defendant has proved that in making the alienation in question, Krishna Kampti's mind was unduly influenced and dominated by the plaintiff's father. This is not a matter always capable of direct proof and must depend by its very nature on the conclusion to be drawn from the entire circumstances in which the transaction had its origin. The motive of the gift, its nature, its effect on the donor and his family, the state of the mind of the donor, whether he acted upon any misrepresentations or misconceptions, the benefit which the person who is alleged to have dominated the will of the donor derives by the act, how the donor regarded the act when removed from the influence of the person for whose benefit the gift was made, what independent and competent advice he had and whether the persons advising him knew of the influence he was acting under, these are some of the circumstances which have to be borne in mind in ascertaining whether the transaction is vitiated on the ground of undue influence. Krishna Kampti, as I have said, was entirely happy in his family relations until the marriage of the plaintiff with the defendant. The defendant charges the plaintiff's father with having broached the idea of this marriage and on the evidence, I am inclined to the opinion that the plaintiff's father was mainly instrumental in bringing it about. He professes in his evidence that in fact he was reluctant to give his daughter to the defendant but gave in under the pressure of Krishna Kampti. He, however, knew or must have known that the defendant was much attached to his wife and was unwilling to marry a second time. Under these circumstances when the plaintiff's father showed readiness to give the plaintiff, a very young girl, in marriage to the defendant, it seems to me that his act must have been influenced by some strong motive, and the more so if, as I think, he actively suggested the idea to Krishna Kampti. Krishna Kampti was, generally speaking, an intelligent; man, and managed his properties himself, which apparently he substantially improved, and also the household affairs. He was much respected in the neighbourhood by reason of his position and wealth.
4. But it is argued on behalf of the respondent that about the date of the transaction under consideration his natural faculties and the strength of his mind must have undergone deterioration. This, it is contended, is evident from all that he did from the inception of these transactions in April 1908 till his death on 17th April 1909 as evidenced by the various documents executed by him during this period. I cannot but hold that there is force in this argument.
5. All along the relations between him and the son were of the most friendly character. The respondent was perfectly obedient to him, in fact ho married the plaintiff simply to please him much against his own inclinations. The only cause of quarrel suggested by the appellant is that the respondent showed hesitation in bringing back the appellant a second time to the house after marriage. I believe the case of the respondent that this was not because he did not want to live with the appellant but because it is not customary for a bride of immature age to live in the house of the husband. Krishna Kampti himself could have had no apparent object to serve by insisting on the respondent bringing the appellant back to the house, for she was too young for connubial intercourse. No doubt, it is likely that the respondent's first wife did not like his marrying the plaintiff, and one reason why the respondent hesitated to comply with his father's wishes was to avoid unnecessary domestic unpleasantness. It is contended on behalf of the respondent that the appellant's father wanted to bring about a quarrel between the respondent and his father in order to accomplish the object he had in view, namely, to get hold of Krishna Kampti's properties.
6. It is clear from the statements in Exhibit I that the respondent was charged with the intention to marry a third wife and to adopt a stranger boy. The respondent says that he had no such idea and there was no such talk. Who is then responsible for the story? Krishna Kampti himself was not interested in inventing it and so it was in all probability the appellant's father who made these false representations to Krishna Kampti, for no one else is suggested as being interested in doing so. The appellant herself was too young to conceive such a plan. The respondent, according to the evidence, had no enemy and as the events showed, the only person who could have been interested in causing a breach between him and his father was the plaintiff's father.
7. To begin with, therefore, we have the fact that the motive for these transactions was supplied from outside by means of false representations and insinuations. I Krishna Kampti's mind had retained its original vigour, it is impossible to conceive that he would not have taken some steps to ascertain the truth of these representations or that simply because the respondent did not evince promptness in getting the appellant back to the house, he would have taken the extreme step of alienating his entire share in the family immoveable properties. In his reply to Exhibit P by which Krishna Kampti notified his intention to the respondent to partition the family properties, the respondent as early as 9th May 1908 asserted that the appellant's father (he is alluding to him as our relatives and friends who make a show of being our well-wishers') had, for sometime, been trying, by various means and from interested motives, to poison Krishna Kampt's mind against him. The marriage of the appellant with the respondent took place only in March 1908. We find that a month or so later Krishna Kampti, who had hitherto been an affectionate father to the respondent, was so infuriated with him that he determined to give away half the family properties to a young girl of eleven years, reserving for himself and his wife, his partner in life for more than 30 years, the barest maintenance. The respondent, it seems to me, must have had good reasons for stating in May 1903 that this state of things was brought about by unfair and insidious means by plaintiff's father.
8. By the deed of gift, following upon the deed of partition on the 23rd May, he purports to give away to the plaintiff the bulk of what he possessed, on the ground that the respondent had been disobedient to him and that he did not care to have anything to do with such a person. He presents the deed for registration on the 1st June. The documents were not immediately registered, as the Sub-Registrar was not sure if the stamp was sufficient and made a reference to the District 'Registrar. Four days after presentation, however, and within three weeks of the execution, this very Krishna Kampti put in a petition to the Sub-Registrar asking for a return of the document on the ground that he did not want them to be registered. It is clear that by this time he was no longer under the influence of the appellant's father and that the real state of facts was explained to him by the respondent and his friends, to that he began to realise that he had been misled. The documents were not returned because the appellant's father gave notice of his intention to file a suit for compulsory registration and obtained an injunction. On the 9th June 1908 he executes a document called Tahanamah, an agreement between himself and the respondent by which be treats the entire property as still joint, states that there was no necessity for alienating any portion (alluding apparently to the deeds of partition and gift) and undertaking on his part not to alienate any property. He states in so many words that he was old and had lost his peace of mind latterly owing to the disobedience of the respondent and that he had at the instigation of the relations of the appellant executed those documents. He obtains an undertaking from the respondent that he would not discard the appellant or marry a third wife or adopt any boy who does not belong to the family of certain dayadis. This shows that he had not yet been able to shake off entirely the effect of the representations that must have been made to him to the effect that the respondent wanted to discard the appellant by marrying a third wife and to adopt a stranger boy. I may mention that the respondent was so much attached to his first wife that be did not want to marry the appellant at all; and the suggestion, therefore, that he intended to marry a third wife, must have been entirely baseless and must have been, as I have pointed out, made by some interested and scheming person, in all probability by the appellant's father who was taking steps to compel registration of the document and filed a suit in the District Court of South Kanara (Original Suit No. 44 of 1908) for the purpose. Krishna Kampti filed a written statement in this suit in November 1908. There he plainly states that the plaintiff's father, taking advantage of his old age, represented to him that the respondent had been wilfully disobedient to him, that he wanted to abandon the appellant to marry a third wife and to adopt a stranger boy, that when he was under the influence of these false representations the appellant's father prevailed upon him to execute a deed of partition and a deed of gift and that for these reasons he did not want that those documents should be registered. The learned Advocate for the appellant argues that these allegations of misrepresentation, undue influence and fraud were untrue, and inserted at the instance of the respondent. But I have already tried to show that the representations alluded to are in fact false and must in all likelihood have been made by the appellant's father. At the least, it is clear that the old man was ready to make any statement suggested to him by the persons who happened to be about him at the time. ' The next document is of 20th March 1909, that is to say, four months after the filing of the written statement. It is called a 'deed of rectification'. It is clear that by that time Krishna Kampti had come again under the influence of the appellant's father and his friends. In this document the appellant's father finds it advisable to content himself with much less than under the deed of gift. The most important modification is the curtailment of the absolute gift in favour of the plaintiff to a gift of an estate for life and the fixing of a maintenance for his wife, but on the other hand the management of the property is made over to the appellants's father and two other persons, one of whom is a clerk of the Pleader who drafted the document. The reason given by Krishna Kampti for not retaining the management in his own hands is that he was weak in health. Furthermore it clearly indicates consciousness on the part of the appellant's father himself that the deed of gift was not a completed document or one which could stand scrutiny in a Court of Law. It was on the basis of this document that the suit for compelling registration was compromised. Krishna Kampti entirely resiled from his own written statement and consented to have the deed of gift registered, subject to considerable modifications or amendment as so called under Exhibit F. This took place about a fortnight before he died. The appellant's father apparently did not leave him alone till the date of his death. On that very day he carried the old man, while he was suffering from fever and must have been in quite a prostrate condition, from his house in the village to Amtur, about 2 miles or so distant, and there in the house of a stranger a Will was executed. In this Will it is stated that the respondent, although he promised to behave obediently, had again become disobedient and therefore all the rest of his property, moveables and cash, whatever had not been disposed of by the so-called deed of rectification was disposed of in favour of the appellant.
9. This is the history, as proved by documents, of the last year of Krishna Kampti's life. Upon these facts, apart from the oral evidence, I should not have the least hesitation in holding that the man's mind had become enfeebled, that the various documents in favour of the appellant were got up when his mind had been poisoned by the influence exerted and the means adopted by the appellant's father. He worked upon the mind of Krishna Kampti by making all sorts of false representations and suggestions to him with a view to secure the property for his minor daughter of which he would, in the circumstances, have entire control and management.
10. The internal evidence furnished by the documents themselves is strongly corroborated by the circumstances under which the deeds in question were executed and registered. For this purpose it is important to bear in mind the situation of the different villages mentioned in the evidence. Karingan, which is the residence of Krishna Kampti and the respondent, lies within the jurisdiction of the Sub-Registrar of Buntwal, only 3 miles distant. The appellant's father resides at Pattur, which is 8 miles distant from Karingan. Puttur is within the jurisdiction of the Sub-Registrar of Vittal, Vittal and Buntwal are in the opposite directions of Karingan. Buntwal which is the proper registration office for Karingan is, as I have said, 3 miles distant while Vittal, where the Sub-Registrar within whose jurisdiction, Puttur is, is 8 miles from Karingan. From Vittal to Puttur is 10 miles. Exhibits A and B, instead of being presented to the Registrar of Buntwal, were executed and presented for registration at Puttur, the Sub-Registrar of Vittal being called there for the purpose. No satisfactory explanation is given by the appellant why the document should have been executed away from Karingan and presented for registration to the Vittal Sub-Registrar and not to the Buntwal Sub-Registrar. The respondent's suggestion is that the Buntwal Sub-Registrar knew Krishna Kampti well and his affairs and if the documents were presented to him, he would have been more strict in requiring proof as to how far Krishna Kampti realised and understood the effect of those documents.
11. The appellant's father took the precaution of having the documents executed at places other than Karingan, removing the old man for the purpose from his house to his own house about 8 miles distant, lest the respondent who happened to be away from Karingan on the particular days might unexpectedly turn up and frustrate his designs. The execution of the Will was part and parcel of the same scheme and cannot be separated from the rest of the transactions. According to the evidence, on that date the respondent happened to be away from Karingan in order to get some medicine from the doctor for his father, who was then suffering from fever. The appellant's father, taking advantage of it, removes the old man to Amtur, which though 11/2 miles distant from Karingan is situated within the jurisdiction of the Sub-Registrar of Vittal. He asks the Sub Registrar to come to the house of an ordinary ryot, a stranger to Krishna Kampti, and there the Will is executed. These facts considerably strengthen the conclusion furnished by the nature and tenor of the various documents, that he was in feeble health owing to old age and that all the dispositions in favour of the plaintiff must be attributed to the exercise of fraudulent means by which the appellant's father dominated the mind and will of Krishna Kampti.
12. As regards the oral evidence, as was to be expected, it is of a conflicting nature. But it is proved beyond any doubt that during the days of the transactions in question the appellant's father was all along with Krishna Kampti, that he went so far as to write his books of accounts during those days so as to ingratiate himself with Krishna Kampti. (See Exhibit 17.) Much reliance has been placed, and naturally so, by the learned Advocate for the appellant on the evidence of plaintiff's witnesses Nos. 2 and 3.
13. The first is a second grade Pleader and the second a first grade Pleader. Both of them had been acting for Krishna Kampti for sometime before the transactions in question. These gentlemen were called in for consultation as to how Krishna Kampti could make a gift of his share of the family immoveable properties to the appellant and for the purpose of preparing the necessary documents. They speak to Krishna Kampti having expressed much anger and displeasure at the respondent's delaying to get his second wife back from her father's house and to a quarrel between the two. But none of them were in a position to say how Krishna Kampti had been worked up to such a state of fury, nor could they be expected to speak as to what part the appellant's father or anybody else had been playing in the matter. We take it upon their evidence and upon other evidence in the case--in fact that was not disputed before us at all--that in executing the deed of partition and the deed of gift Krishna Kampti knew the nature of the dispositions he was making. But that does not, by itself, dispose of the question as to whether those documents were brought about by the undue influence of any one. The value of these witnesses' evidence, especially the 3rd witness, must to my mind be taken to be much discounted by the fact that it was he who filed the written statement Exhibit III, which contains a statement that the deeds of partition and gift, to the drafting of which this Pleader was a party, were brought about at the instigation of the appellant's father and under the influence of misrepresentations and false suggestions made by him. Plaintiff's witness No. 3 should have known that the statements in Exhibit III must be false if he means to convey by his evidence in Court that the deed of partition and the deed of gift were not in fact brought about by improper means employed by the appellant's father. P. W. No. 2 says that it was at his suggestion and for his convenience that the deeds of partition and gift were executed at Puttur in the plaintiff's father's house, which is only a few yards off from his own house. But all the facts in connection with the execution of this and other various documents induce me not to accept this statement as the main reason for the execution of Exhibits A and B in Puttur.
14. Krishna Kampti was made to give away by a deed of gift property of the value of Rs. 40,000 or more including the family house, allowing himself and his wife, with whom he had been on loving terms, to be maintained at the discretion of a young girl of 11 years or her father. The deed itself says that the gift was made in order to make provision for her. That could not be the true reason as she could not want so much for her maintenance. The real benefit would in fact go to the appellant's father. If the making of provision for the appellant was not the real motive, the other motive suggested is Krishna Kampti's displeasure with his son. No doubt, he was angry with him for not going to the appellant's father's house to bring the appellant as desired. But in the circumstances which I have mentioned, that alone could not adequately account for Krishna Kampti's action. His mind must have been poisoned, as found by the Subordinate Judge, by the appellant's father by means of false representations to the prejudice of the respondent. It can hardly be doubted that Krishna Kampti's intelligence must have considerably declined and his will power greatly weakened during the period covered by these transactions. And that made it possible for the appellant's father to influence him in the way he did. Krishna Kampti repudiated what he had done as soon as he was removed from the influence of appellant's father. It was part of the latter's plan, in order to facilitate the object he had in view, to take Krishna Kampti away from his house to his own house for the purpose of getting him to execute and register those documents. I agree with the Subordinate Judge who saw the witnesses give their evidence, that the documents A and B were executed under undue influence and are, therefore, invalid.
15. This is sufficient to dispose of the appeal. But the appeal fails on another clear ground, namely, that Exhibits A and B were repudiated by Krishna Kampti before they were registered. Under the Transfer of Property Act a gift can be made only by a registered instrument. They were presented for registration by Krishna Kampti on the 1st June, but on the 5th June before they could be registered he put in a petition saying that he did not want the documents to be registered and asked that they may be returned to him. They were therefore entered in Book No. 2, which is the book containing entries of documents the registration of which is refused and the reasons for refusal to register.
16. They were not actually returned to Krishna Kampti because the appellant had obtained an injunction from the Civil Court. The fact, however, remains that Krishna Kampti repudiated the gift and the partition on 5th June. On 9th June he executed the Tahanamah and registered it. The effect of this is the cancellation of the contemplated gift and partition. Some reliance was placed on behalf of the appellant on a recent Full Bench decision of this Court in Gangadara Mudali v. Sambasiva Mudali 40 Ind. Cas. 192 where it has been ruled that if a donor dies after the execution of a deed of gift but before registering it and the donee presents it for registration during the time allowed by the Registration Act, the gift becomes complete on its being registered at the instance of the donee. The reasoning on which the decision is based is that a deed of gift may be registered not merely, on presentation by the executant but also on presentation by the claimant, that is, the donee. Therefore, if the donor, after executing a deed of gift, delivers the document to the donee, the latter is entitled under the law to present it for registration and once it is registered, it takes effect from the date of execution. But here the deed was not delivered to the appellant or her guardian or father or to any one acting on her behalf as guardian. The donor kept it with himself. He presented it for registration, but repudiated it afterwards and executed a document inconsistent with and having the effect of cancelling the contemplated gift. If the arguments addressed on behalf of the appellant were to be accepted, the logical result would be that directly a deed of gift is executed, even though the donor never delivers it to the intended donee or to any person on his behalf but keeps it looked in his own box, yet the donee can compel him to register it. The Full Bench decision referred to certainly does not go so far. All that it lays down is that if the donor has done all that lies in his power to complete the gift either by having it registered himself or by handing it to the donee, then he cannot afterwards retract the gift. To go any further would be to make a serious breach in the well-established principle of law, that a donor cannot be compelled to complete an incomplete gift. There were also other questions of law argued by Mr. K. Srinivasa Aiyangar, the learned Vakil for the respondent, on which it was contended that the Exhibit A is invalid and inoperative in law; it is not necessary to discuss them. I con-firm the decree of the Subordinate Judge and dismiss the appeal with costs.
17. I concur in the decree proposed by my learned brother and I deal with the question, on which I differ from him, that of undue influence, because plaintiff is entitled to the benefit of my finding in view of the possibility of an appeal.
18. The doctrine of undue influence has been invoked by defendant to disable plaintiff, his second wife, from recovering on Exhibit B, a deed of gift to her by Krishna Kampti, his adoptive father, of part of the property obtained in the partition under Exhibit A. The former document was executed three days after the latter and they are according to defendant one transaction, into which Krishnan was induced to enter by the undue influence of plaintiff's father, 7th plaintiff's witness, with the result that defendant was cot out of a large part of the property, to which he would have been entitled in the event of Krishnan's death undivided from him. His allegations are in particular that, from shortly after his marriage to plaintiff and whilst he was absent from home, 7th plaintiff's witness began to dominate the mind of Krishnan, who was aged seventy, and by telling him false tales induced him to execute these documents. The burden of proof of this is of course on defendant.
19. Firstly, as to the ostensible motives for the execution of Exhibits A and B and next as to those alleged to have really secured it. In 1908 defendant, aged thirty-seven, had been married some years without issue and he admits that he had no mind to marry plaintiff or any other second wife and that he married her, because Krishnan pressed him to do so. He says generally that Krishnan did so at the instigation of plaintiff's father, his brother-in-law. But there is no evidence that the latter had begun to exercise undue influence at that time and no explanation as to his means of doing so. The undisputed fact is that from the beginning defendant was averse from the marriage, whilst Krishnan insisted on it. A few days after it plaintiff, a girl of eleven, who had not yet attained her age, returned to her parent's house, where, as 2nd plaintiff's witness and 1st defendant's witness deposed, she would in accordance with custom mostly live until she did so. Krishnan, however, pressed defendant to go there and, as appears from 7th plaintiff's witness's evidence, to fetch her back in order that she might remain with him. He did not do so, but went away with his first wife to her family house, where her father was ill. Whilst he was there, Krishnan sent him Exhibit P, in which he referred to his disobedient conduct and to his having left the house 'on vain pretexts, uttering some improper words' and having taken with him all the jewels belonging to his first wife and certain valuable securities; he announced his intention of making a partition and called on defendant to choose the properties in one or other of two lists enclosed as his share. The removal of the jewels could be matter for reproach, only if they were the family jewels in defendant's wife's possession; and the abstraction of the documents is not referred to again in the case. In his reply, Exhibit Q, defendant denied having taken them or been disobedient, attributed Krishnan's decision to the intrigues of relatives and friends, attempted to dissuade him from dividing and, in case the decision was insisted on, chose the properties in one list. This was on 9th May 1908. Exhibit A was executed ten and Exhibit B fourteen days later.
20. The period, in which all this took place, is important, because it was before the date of the document, which is attacked, and because during it the exercise of undue influence must be established, the later occurrences calling for attention only as indicative of Krishnan's mental position and capacity. There is, it may be conceded, no doubt according to any standard, European or Indian, that his insistence, not only on defendant's re-marriage contrary to his wishes, but also on his bringing back his bride, before he was willing or was obliged by custom to do so, was unreasonable. But that is not enough for defendant's case. He must prove further that this conduct was induced by influence, which was within the legal definition undue.' Such proof may be either direct, though that cannot be insisted on and is possible to a small extent only in this case, or indirect with reference to the opportunities for and disposition to the exercise of influence on the one side and the result of its exercise, as indicated by the merits of the transaction, the acceptance of false representations and the entertainment of false beliefs on the other. Following the discussion of the decision in Huguenin v. Basely 2 White and Tudor's Leading Oases 6th Ed. : 597 I deal with the evidence with regard to these points,
21. Krishnan owned a half share in considerable property and, except for his age, there was nothing against his capacity, defendant himself deposing that he joined in the management until his death, had taken leases and other documents in his name, in particular two mortgages in 1907, was managing well and except for 7th plaintiff's witness's influence, was a good and intelligent man. Generally, therefore, there is no ground for any suggestion that he would be the prey of a designing relative, such as 7th plaintiff's witness; and I see no reason for making the assumption, which defendant's case requires, hut for which there is no distinct evidence, that his mental capacity deteriorated at this time. The 7th plaintiff's witness's opportunities for influence before Exhibit A can be stated shortly. He was Krishnan's brother-in-law and naturally his intimate. He came, he says, at Krishnan's invitation, though that is not corroborated, to his house from his own house, whither he had gone after the marriage, and was then told of defendant's refusal to go for his wife and of his other conduct, which was perverse in Krishnan's eyes, and he was with the latter, when Exhibit P was sent, as his entries in the accounts Exhibit IV on 6th to 17th May 1908 show. But this goes very little, if any, way towards proving that he dominated Krishanan's will. The proved facts, his relationship to him and the fact that he was plaintiff's father made it natural that he should be consulted, but did not entail that his opinion would be decisive. There is nothing on defendant's side to show that the story of an invitation by Krishnin is untrue and it cannot be assumed that it is so. The entries in the accounts are not shown to be of a character involving any confidential relation. There is neither at this nor any other stage any suggestion that attempts were made to prevent Krishnan and defendant meeting. Why should it be assumed that 7th plaintiff's witness was the moving spirit and that Krishnan's advocacy of plaintiff's claims was not the crotchet, unreasonable it may be, of an obstinate old man desirous of a grandchild and his endowment of her the means he adopted for bringing her and the defendant together?
22. The suggestion, it has been said, is that Krishnan was deceived by 7th plaintiff's witness's untrue statements as to the relation between plaintiff and defendant. But there is no direct evidence of this, no witness having been called, who refers to any allegations as 'having been made by 7th plaintiff's witness in his hearing or as referred to by Krishnan; and there is no evidence that as regards the period before Exhibit A 7th plaintiff's witness ever made any complaint, Exhibit W referring to much later events. In fact, if anything to prejudice Krishnan had occurred between the couple, it must have been during plaintiff's short stay in his house or in connection with defendant's refusal to bring plaintiff back there; and of those matters Krishnan's own information would be exhaustive. Defendant did not specify 7th plaintiff's witness in Exhibit Q as among the relations and friends, to whose machinations he attributed Krishnan's desire for a partition; and, although in evidence he said that his mother and the servants told him of the way in which Krishnan's mind was poisoned, he called none of them. If the charge in Exhibit P of abstracting jewels and documents refers, as it must be understood to have done, to family jewels in defendant's first wife's possession, there is no more reason for supposing that Krishnan would have shrunk from making a false charge than that 7th plaintiff's witness would have done so; and in fact on defendant's denial, that matter does not seem to have been considered further, When, as was the case, Krishnan's own information was full, there is no reason for assuming that he derived his prejudice from 7th plaintiff's witness or any other person.
23. It is next important that, whatever the extent of his dependence on 7th plaintiff's witness, and it is not shown to have been material, the latter is not alleged to have attempted to keep him from intercourse with defendant or any other person likely to influence him. There is some conflict of evidence, which it is not possible to resolve, as to the presence of defendant and 7th plaintiff's witness, when Exhibit A was being prepared; but the former eventually withdrew his statement that he returned home on receiving Exhibit P and said that he did not do so as he knew Krishnan would not listen to him, a statement indicating that the two had parted on a strained footing, with which 7th plaintiff's witness could have had nothing to do. There is in fact no explanation given for defendant's failure to return instead of merely sending Exhibit Q, and devote himself to undoing what had been done and counteracting 7th plaintiff's witness's influence in the future; and, perhaps because he was conscious of more acute past disagreement than the evidence discloses, it will be found consistently with this that, although he throughout has access to his father, he at no time attempted to protect Krishnan from undesirable influence or to prevent 7th plaintiff's witness retaining or regaining his ascendency. At the time of the partition, threatened in Exhibit P and agreed to in Exhibit Q, Krishnan's wife, of whom defendant makes no complaint, was with him and he executed Exhibits A and B after consultation with 2nd and 3rd plaintiff's witnesses, the latter a first grade Pleader and defendant's mother's step-brother. 2nd plaintiff's witness says that he advised both parties to be reconciled and 3rd plaintiff's witness that he advised defendant. Neither witness is beyond criticism as regards credit and independence, 2nd plaintiff giving 7th plaintiff's witness legal assistance at a later stage and 3rd plaintiff's witness's subsequent conduct in connection with Exhibit III being explicable only on the assumption that he could act as a mere mouthpiece for his client without regard to facts (as he now speaks to them) or that client's previous professions. But nothing as to 7th plaintiff's witness's exercise of influence over Krishnan was elicited from either of them. Similarly as regards 4th plaintiff's witness, a retired 2nd grade Pleader paying a substantial assessment, who had known Krishnan for thirty years privately and professionally and who attested Exhibits A and B. In reply to his remonstrance Krishnan said that he must execute them, because he was bound to see to the welfare of his son's second wife and that defendant wanted to neglect her. Defendant admitted that, when he attested, 7th plaintiff's witness was present; but the latter did not support him further and no reason has been shown for distrusting his evidence. On the other hand defendant adduced nothing whatever on thin part of the case.
24. Exhibits A and B were presented for registration at the Vittal office, which is not the nearest to Krishnan's house at Karingan. But there is no reason for doubting the explanation given that Vittal was more convenient for 2nd plaintiff's witness, who drafted them and had advised over the partition; and the suggestion that secrecy was intended is not established, since defendant had been told in Exhibit P of the partition at least and there is no reason for supposing that he would hive heard of Exhibit B also, if it had been registered at the nearest office at Buntwal, earlier than he actually did; that is within a fortnight, before Exhibit C. The suggestion, that the reference in Exhibit A to his purchase of a stamp for it was an attempt to fix him with concurrence in its terms, is unsustainable. He, no doubt, denied the purchase and in the alternative has pointed out that it was made on 3rd April 1905 sometime before any question of partition arose. But against this denial there is no reason for distrusting the endorsement of the stamp vendor made in the course of his duty; and as regards the second point and the probability that the stamp was purchased for some other transaction, the suggestion that there was any sinister design in its use for Exhibit A is sufficiently answered, when it is observed that such a design would be intelligible in connection only with Exhibit B, not with Exhibit A, which he had admitted Krishnan's right to execute and to the terms of which he had consented in Exhibit Q. It is possible, and a similar statement in Exhibit B indicates, that it was the document writer's habit to include such recitals in his drafts; and in the circumstances no inference adverse to plaintiff has been sustained.
25. Exhibit B effected a transfer to plaintiff of all the immoveable property comprised in Krishnan's share under Exhibit A and of a mortgage with possession for Its. 12,000 and left him with only other mortgages aggregating Rs. 8,015, moveables and cash in hand Rs. 3,271 and outstanding Rs. 1,854, in all over Rs. 13,000, although the last item might not all be realisable. It is difficult to arrive at the proportion of this to his share under Exhibit A. But, if the latter is taken, as it was by the Sub-Registrar in Exhibit G, as worth Rs. 41,424 Krishnan gave up three quarters of his property, retaining the remaining quarter and the benefit of a stipulation in Exhibit B for his and his wife's maintenance at a specified and apparently a fairly liberal rate. Such arrangements by aged persons for their maintenance are not in nay experience uncommon, although in this the selection of plaintiff, a young girl, as the donee was certainly exceptional and the provision for her would, it may be conceded, be excessively liberal according to ordinary opinion. But it is material that firstly no such total surrender and no creation of opportunity for such further aggrandisement by plaintiff or her father was created as complete domination of Krishnan's Will by the latter might naturally secure. For it must be noted that, not only was the gift limited to a portion of Krishnan's property, but he retained the management of that portion as plaintiff's trustee until her majority; that is, for as long as he was likely to be capable of it. And next in view of the occasion on which the arrangement was made and the surrounding circumstances, it is intelligible as an attempt to provide defendant with a motive for accepting plaintiff as his wife and eventually cohabiting with her.
26. I turn next to a portion of the case, on which defendant has laid much stress, that relating to Krishnan's subsequent conduct and dispositions. The latter must, of course, be considered without reference to the formal objections to their validity and, as they are relied on, only as evidence of his liability to succumb to any temporary influence and of the intention as to his property, which resulted from the free exercise of his will. It is to be observed that the simultaneous conduct of argument in each of these senses is difficult. For, if Krishnan's successive dispositions varied according to the influence to which he was temporarily subject, it will be hard to deduce from them any continuous underlying intention. It may be added that such intention, so far as it can be deduced, seems to me on the whole consistent with the desire to benefit plaintiff, expressed in Exhibit B.
27. Exhibit B was executed on 23rd May 1908 and presented for registration seven days later. But on 5th June i908, Exhibit 0, the petition for withdrawal of Exhibits A and B, which, as defendant says, may have been drafted in his presence, was presented; and on 9th June 1908 after a panchayat had been held, Exhibit I was executed and eventually registered, virtually cancelling Exhibits A and B. Next, however, apparently within the time fixed in Exhibit N, the Sub-Registrar's decision to return the documents unregistered, the plaintiff brought Original Suit No. 44 of 1908 for a direction to him to register them. It ended on 31st March 1909 in a compromise decree, Exhibit IT, directing their registration, as modified by an agreement, Exhibit F dated 29th March 1909 executed by Krishnan. Between Exhibit I and Exhibit F, 7 P. W. had been coming to his house and on two days in November 1908 made entries in his account, Exhibit IV. It does not appear, however, that defendant, who no doubt was not a party to Exhibit F or the compromise, was not there also and could not have counteracted 7 P.W.'s maneuvers; and admittedly he was with Krishnan on the next important date, 17th April 1908. On it during his temporary absence Krishnan was taken a mile and-a-half to a place within the Vittal Sub-Registrar's jurisdiction, where he registered Exhibit F and Exhibit S, his Will, dying the same day.
28. Of these documents defendant' relies mainly on Exhibits C and I as evidencing a total revulsion of feeling on the part of Krishnan. But, although the registration of Exhibits A and B was in terms abandoned and, inconsistently with them and especially the former, the father and son decided to remain joint and agreed not to change their status in the future and although Exhibit I starts with a recital regarding the previous instigation of plaintiff's relatives and (a suggestion not persevered in) the insertion in the previous documents of unauthorised matter, there is also a recital regarding defendant's disobedience and the necessity for preventing quarrels between his two wives and there are stringent provisions for the protection of plaintiff and also of the first wife against the contingencies of defendant's discarding either, marrying a third wife or adopting a stranger. These provisions require attention, because it is suggested that nothing in defendant's' conduct made them necessary and that they were due to the further misrepresentations as to his intentions by 7 P. W. to Krishnan, referred to by the latter in his written statement in the suit, Exhibit III. Reference to Exhibit III, however, does not improve the argument. For, although it was no doubt signed by Krishnan and presented by 3 P. W, it is not clear how far it really embodied the former's views, since the only first hand evidence is that the draft for it was given to 3 P. W. by 3 D. W., who is brother of defendant's first wife and would, therefore, naturally assist him; and, as 3 D. W. says that he had it from another Pleader, not examined, there is only Krishnan's signature as security for his responsibility for its details. It is worth noticing that Krishnan signed it within a week of 7 P. W.'s writing entries in his accounts, when, on the defence case, he should still have been subject to the latter's influence. The provisions of Exhibit I need not in fact be explained by reference to any particular mistaken impression, however produced. For they correspond with obvious possibilities in conjugal relation, as it exists between members of the parties' community; and there is no necessity to suppose that they were founded on misrepresentations by 7 P. W. when Krishnan was equally aware of those possibilities and had expressed and was again to express distrust of defendant's intentions and when the precautionary provisions insisted on were calculated also to protect the interest of defendant's first wife. Their primary object was, it may fairly be taken, that already suggested for Exhibit A, although it was now to be effected more simply and at less expense, to promote a reconciliation between defendant and plaintiff by imposing terms for the latter's protection. Those terms were arrived at under defendant's influence and after a panchayat had been held, the members of which could presumably have been called to support this part of defendant's case; and there is no ground for ascribing them to the misrepresentation of 7th P. W. In fact they indicate that Krishnan, in spite of defendant's presence and after due deliberation and advice from his friends, persisted in his apprehension for and intention to protect plaintiff.
29. This intention is more clearly expressed in Exhibit F. For, although Krishnan returned to Exhibits A and B and a scheme for plaintiff's endowment and transferred the immediate management of her property from himself to 7th plaintiff's witness, he displayed a greater regard for defendant's claim in case his conduct should be satisfactory. Firstly, a separate maintenance is provided for Krishnan's wife and next there is an important explicit provision for defendant's right to manage the property, in case he 'brings plaintiff and keeps her with him and lives with her in the family house amicably.' Further the absolute estate conferred on plaintiff by Exhibit B is replaced by provisions giving her only a life-interest, (2) directing the devolution of the properties on her children, if she has any, and otherwise on those of the first wife, if any, and in case an adoption is necessary on a son, if adopted from specified families. On this I observe firstly that, although Exhibit F refers generally to the inclusion in Exhibit B of unauthorised matter, that matter is not specified and the dispositions made are, though less favourable to plaintiff, still sufficiently so to indicate Krishnan's persistence in the intention already attributed to him to protect her. Secondly we have nothing in detail as to the execution of Exhibit F or its presentation to the Court and nothing to explain, if defendant's case is true, how 7th plaintiff's witness was able to re-establish his influence and defendant was unable to counteract it, although we know that he was with Krishnan within three weeks of the execution on the date of Exhibit S. The inference must be that Krishnan acted on a well formed intention throughout, though with discrimination, the concessions to defendant's interests being evidence on the latter point.
30. Lastly as to Exhibit S which, in the absence of anything definite to the contrary and in view of its registration, must be treated as made with full capacity. It was made during defendant's temporary absence and he contends that it and the simultaneous registration of Exhibit F correspond with a revival of 7th plaintiff's witness's influence since his own departure in the morning. This, it is said, is indicated first by the journey to register the document within the Vittal jurisdiction; and no doubt, if (as would have been natural) the Bantwal Sub-Registrar had been sent for to the house, he would not have had so far to come as the Vittal Sub-Registrar to the place chosen. But, previous dispositions (including Exhibit 1) having been registered by the latter, there was good reason for employing him again; and in view of defendant's merely temporary absence it is difficult to believe that there could have been any serious expectation of concealing the transaction from Vim. There is nothing clear as to the time he had been in Krishnan's house. But it is extremely unlikely that he was ignorant of Exhibit F, since it is mentioned in the compromise petition, Exhibit R, and he had presumably had notice of the passing of the compromise decree, Exhibit U; and it is then remarkable that Exhibit F had not been destroyed at his instance. And next, Exhibit S is significant, because, whilst it refers to the coarse of the dispute between Krishnan and defendant, it confirms Exhibit F, except as to one particular, the appointment of 7 P. W. as one of the executors for the disposal of the items of property not included in the earlier documents. This is not favourable to defendant. But the disposition of those items in no way supports an intention to despoil him. For it benefits only Krishnan's widow, defendant, who is to take the residue, if he lives with plaintiff within ten years, and various charities, except as regards an annual allowance to the two executors of Rs. 50 each. It is not possible to recognise in Exhibit S any material result of the exercise of influence adversely to defendant; and it is impossible to believe that any would have been exercised by 7 P. W. to secure so little advantage.
31. It has been pointed out that the burden of proof is on defendant. He has, in my opinion, proved only that 7 P. W. had some opportunities of influencing Krishnan; that the latter was in Exhibit B unduly liberal to plaintiff; and that for one short period he changed his mind as to benefitting her directly, although he never did so as to the general necessity for protecting her interest: There is no reason in the circumstances for the assumptions, which we are asked to make, that Krishnan's intelligence was failing and that he was moved by misrepresentations regarding matters mostly within his own knowledge, which 7 P. W. is not proved to have made and which defendant, his adoptive mother and the friends consulted could have corrected. On the other hand it is not proved that any attempt was made to keep Krishnan from the influence of defendant or any other person or that the former either before or after Exhibit B acted as though he has anything to fear from 7 P. W. The case is in fact one of an old man of full capacity, which is not shown to have been impaired, anxious, no doubt unreasonably, to secure the continuance of his family and to interfere in his son's affairs, who made a disposition, unduly liberal, but not so extravagantly comprehensive as to be irreconcilable with his own comfort or his exercise of independent volition; and who persisted in the sentiment, which dictated it, almost continuously and in defendant's immediate society until his end. That does not justify a finding for undue influence and I would, therefore, dissent from this part of the lower Court's decision.
32. There remains the defence that Exhibits A and B are unenforcible, because they have not been registered either by Krishnan or after delivery by him by any person legally competent on plaintiff's behalf; and I agree that it must prevail. It is not disputed that these documents cannot be given in evidence or enforced, if they are not registered. Then firstly, the original registration proceedings initiated by Krishnan were abortive, since an order was passed for the return of the documents unregistered and this cannot be affected by the actual failure of Krishnan to receive them. It has no doubt been argued that, having presented them, he had done everything in his power to make them effectual. But the principle that presentation of such documents can be treated as equivalent to registration as against their executants is not supported by anything in Section 47 or elsewhere in the Act or, so far as we have been shown, by any authority. And secondly, if it is assumed that the decree, Exhibit U, was equivalents a delivery of the documents by Krishnan to plaintiff, there is first the difficulty that Exhibit A and therefore Exhibit B had impliedly been cancelled before its date by Exhibit I and are, therefore, unenforcible, whether or no the subsequent presentation and registration were regular. I should, moreover, be ready to hold that they were invalid, because under Section 32, Registration Act, the documents could be presented only by plaintiff's representative or assign; and 7th P. W., who presented them, was not her assign, or her representative under Section 2 (10), since he had ceased to be her natural guardian on her marriage and had not been appointed her legal guardian.
33. In these circumstances I agree with my learned brother's decision, dismissing the appeal with costs.