Francis W. Maclean, C.J.
1. This is a suit by the heir and Heiress of the late widow of the late King of Oudh, commonly called Khas Mahal, and another gentleman who claims as a purchaser of certain interest in the property, the subject of dispute, from his co-plaintiffs, against one Pearay Saheb and the Administrator-General of Bengal; and the object of the suit is to hare an account taken of all moneys and other properties come to the hands of Peary as the alleged confidential agent of Khas Mahal, and for payment of what shall be found due to the plaintiffs on taking such an account; for enquiry as to certain property which he is alleged to have taken occasion of after the death of Khas Mahal, and for consequential relief.
2. Shortly, the case of the plaintiffs is as follow:
They allege that Khas Mahal died intestale on the 1st of April 1894, leaving the plaintiffs 1 and 2 as heirs under the Shiah School of Mahomedan Law; that she died possessed of considerable property both moveable and immoveable that some sixteen years ago, the defendant Pearay, Who was then in indigent circumstances, and who is apparently it first cousin once removed, of Khas Mahal, came to her and appealed to her kindness; that she took pity upon him, allowed him to live at her house at Garden Reach; that he acquired the confidence of the lady, and, as time went on, exercised a great influence over her; that he acted as her confidential agent for the purpose of transacting her business matters, and that he attained such ascendency over her as to deprive her entirely of all free agency in respect of her affairs and estate; that the late King of Oudh died in 1887; that on his death Khas Mahal became entitled to a large amount of property; that Khas Mahal was at this time an old lady--her then age would appear to have been about sixty--feeble in body and mind; that Pearay obtained large sums of money from her; that he entirely controlled her affairs; and, in effect, deprived the lady of the bulk, if not the whole, of her property.
3. Khas Mahal died, as I have said, on the 31st of March or the 1st of April 1894, and the present suit was instituted on the 26th of March 1897, some four or five days before the period, allowed by the Statute of Limitation, expired.
4. The defendant Pearay Saheb admits that some nineteen years or so before her death, he came to reside with Khas Mahal; that she did ask for his advice from time to time in relation to her business affairs, but he denies that he succeeded in gaining her confidence in any unfair sense, or that he exercised great influence over her, or that he ever acted as her confidential agent, or gained such ascendancy over her as to deprive her of her free agency in respect of her affairs and estate. He denies that he was feeble in body or mind or incapable of attending to her business affairs, and, on the contrary, he says that she was a woman of exceptional ability, of business habits, and was perfectly competent to supervise and manage her business affairs. He says that he rendered her services from the to time; that she had, considerable affection for him; and that she did, from time to time, give him jewellery and sums of money, which, on his own evidence, amounted apparently to, a very large sum. As a defence to this suit he relies upon a deed, of release, dated the 12th of November 1891, which was executed by the lady, in which she recognised that her presents; to him were freely given, and released him from all liability to account. That deed of release was duly registered. He also, denies that the lady died intestate. He says, that she made a will, dated the 13th of June 1893, under which the Administrator-General of Bengal was appointed executor, and in which she expressly confirmed the release in question; that that will was proved in solemn form after a severe contest between the present plaintiffs Nos. 1 and 2 and himself, and that, until such release is set aside, it is not competent for the Court to direct an inquiry into or any account of the transactions antecedent to the date of that release.
5. These being the issues between the parties, the Subordinate Judge of the 24-Perganas, after a trial, which apparently lasted for some seventy-six days, made a decree in favour of the plaintiffs against the defendant Pearay, not for an account, as was asked for, but for a lump sum of eight lacs of rupees, Pearay; has now appealed against that decision.
6. Very little of the voluminous evidence in the case has been read to us, because it has been conceded by the learned Counsel for the respondent that they cannot succeed in their suit for an account, unless they can set aside the deed of release. As I have stated, the deed of release is dated the 12th of November 1892, and the will is dated the 30th of June 1893, and the will contains the following clause: 'I have from time to time made gifts of money and cash to the said Nawab Pearay Saheb, and on the twentieth day of November one thousand eight hundred and ninety one, I executed a safinamah in his favour. Which has been duly registered. I have also by a deed of trust dated the fifteenth day of February, one thousand eight hundred and ninety-three, duly registered, dedicated certain property therein described for religious and charitable purposes. I confirm these transactions.' The will was strongly contested by the present plaintiffs Nos. 1 and 2 when probate was applied for by fee Administrator-General of Bengal, and the probate proceedings were pending during the trial of the present case in the Court below, judgment being delivered on the 2nd of July 1900, and probate issuing on the 30th of August in the same year. The decree now appealed against is dated, the 4th of March 1901. The Administrator-General of Bengal applied for probate on the 14th of May 1894, and a caveat was entered by the plaintiffs Nos. 1 and 2 shortly afterwards. In the probate suit, substantially the same issues were raised as in the present case. The caveators set up that Khas Mahal was physically and mentally incapable of giving instructions for the will, or of understanding the will, that she was unable to understand the nature of the dispositions contained in the will by reason of her feebleness of body and mind, and that the wilt was prepared and executed under the undue influence of the defendants Pearay. Mr. Justice Sale, sitting on the Original Side of the High Court, held, however, that the aviators had absolutely; failed to make out their case. He was satisfied that the lady did give instructions for her will, that she thoroughly understood its contents, and executed it as a free agent and not under the influence or ascendancy of Pearay, and with full testamentary capacity, and probate was accordingly granted. The present plaintiffs Nos. 1 and 2 appealed against that decision, but the appeal was dismissed with costs. There was no further appeal from that decision.
7. We must take it, then, for the purpose of the present discussion, that the lady thoroughly understood the purport and effect of her will, and that it was her voluntary act, and that she was of full testamentary capacity to make the will, and in that will she expressly confirms this release.
8. It has been contended for the present plaintiffs, the respondents, that the confirmation in the will of the deed of release by Khas Mahal does not prevent them from asserting and proving, if they can, in the present suit, that the release was, in point of fact, executed by the lady under the undue influence of Pearay; and, in our opinion, the mere grant of probate does not prevent them from going into that question. But it has been equally conceded by the counsel for the plaintiffs that in the face of the confirmation by the lady of the release in her will, executed under the circumstances proved in the probate suit, and which will, under the circumstances, she must be taken to have understood and approved of, it would be virtually impossible, by any otter evidence, to satisfy the Court that the release had been improperly obtained from Khas Mahal. To get over this difficulty the plaintiffs contend that in the present suit it is open to them to show that the particular clause in the will confirming the release was inserted in the will through the exercise of undue influence on the part of Pearay. We are unable to accede to this contention. No doubt, according to the English authorities, caveators may object not to the whole of the will but to a particular part of it, and say that a particular clause has been inserted in the~ will by fraud, and if that be substantiated, probate will be granted, exclusion such clause. But here, in the probate suit, the whole of the will was assailed on the, ground of under influence: it was said that the will as a whole was invalid on that ground; and the Probate Court decided that issue against the. present plaintiffs. It appears to us, under these circumstances, that it is not now competent for the plaintiffs in this suit in the Court of the 24-Perganas, which was not sitting as a Court of Probate, to show that this particular clause in the will was inserted in the will through the undue influence of Pearay. No such case is made by the plaint, nor could it properly have been made in the Court which was dealing with the present suit.
9. The question of the exercise of undue influence in relation to the will--the whole will--has been decided adversely to the present respondents, and the present contention is a mere attempt to review the decision of the Court of Probate. The case seems to be governed by the principle of Allen v. M'Pherson (1847) 1 H.L. 191. It must, we think, be taken as settled law in England that a will cannot, after probate, be set aside in equity on the, ground that the will was obtained by fraud on the testator and no argument has been adduced before us to show why the same principle should not apply in India.
10. The result then is this: we have the release confirmed by the lady by her last will, which, after challenge, has been found to have been duly explained to her and to have been executed by her as a free agent with due testamentary capacity. In the face of that release we do not see how the plaintiff who do not see how the plaintiffs, who are claiming through Khas Mahal, that lady herself having made no complaint against Pearay during her lifetime in respect of the transactions in question, but having released him front all liability in respect of them, can now ask for an account as against Pearay of the transactions antecedent to that release. It has been admitted that there were no transactions subsequent to the release, and the plaintiff's case throughout has been that all the money was obtained from the lady before the release; and that all the transactions complained of were before the release. Ad regards the claim from an inquiry as to the property alleged to have been taken, by Pearay after the death of the lady, the Court below has said nothing about that, and we have not been troubled with any argument upon that part of the case. The result, therefore, is that the appeal must be allowed with costs and the suit dismissed with costs.
11. I concur.