1. The plaintiffs who were unsuccessful in a suit; for declaration of title and recovery of possession with mesne profits and for accounts in respect o a karbar which was a business in oil have preferred this appeal. In the sixties of the last century we first hear of a family consisting of a man named Mohesh Chandra Sadhukhan, his mother Parbati and his wife Muktamani. The family were oilmen by caste and they earned their living by a caste-business, namely a business in oil. In 1864 a plot of land, 1 bigha 12 cottahs in area which then bore Holding No. 67 in a subdivision of Panchannagram in the District of 24-Parganas was acquired by Parbati by purchase and in 1867 she transferred it by way of gift to Muktamani. In 1873 Mohesh took mourashi mokarari settlement of a holding bearing No. 68 and lying adjacent to the west o Holding No. 67 and he transferred this holding along with some other lands which he appears to have also acquired by then to Muktamani by a kobala in 1878. Mohesh died in 1892. In 1920 Muktamani made a gift of the lands of Holdings Nos. 67 and 68 and the structures which she in the meantime had erected on them to one Hari Charan Sadhukhan and his two sons. Hari Charan was a mamato cousin of Muktamani, and had been for a long series of years putting up with Mohesh and, as stated in the plaint had been appointed by Mohesh to supervise the business and conduct the shop in which it was carried on. And in 1889 Mohesh who had then apparently fallen into debts, had sold to Hari Charan the ghurs which then stood on Holding No. 67 as also the business itself together with all fittings, appliances etc. Muktamani died in 1927. Hari Charan also is dead and his two sons are the defendants in this suit.
2. The plaintiffs claim and have been found to be the heirs of Mohesh and also of Muktamani in respect of her stridhan properties. As heirs of Mohesh they alleged that Holding No. 67 belonged to Mohesh, the purchase in the name of Parbati and the gift in favour of Muktamani by her being both benami; and that the sale by Mohesh to Muktamani of Holding No. 68 was also an unreal transaction. On that footing they claimed title as reversionary heirs of Mohesh on Muktamani's death to the two holdings, which are now numbered 40 and 44 and comprise an area of 3 bighas 5 cottahs, together with the pucca structure thereon. The entire property goes by the description of premises Nos. 6-7 Gariahat Road, Ballygunge. In the alternative and as heirs of Muktamani, they impugn the validity of the gift made by her in favour of the defendant and their father Haricharan and claim title to the property as such heirs., The karbar ceased to exist some long time ago, and the claim to it has been given up by the plaintiffs, as appellants in this appeal, and so need not be considered. The defence was that all the transactions referred to above were real and that the defendants have acquired a title which is indefeasible. The usual difficulties which a Court feels in dealing with the question of banami are present in the case. Added to those difficulties the danger of an unconscious leaning on the part of the Court to regard as benami a transaction in the name of a woman when her resources are not apparent, though as a matter of law there is no such presumption. On the top of all this is the fact that the transactions that have to be judged are such in respect of which by reason of the time that has elapsed since then, no direct evidence is available and such little of it as has been produced is obviously untrustworthy.
3. The safest course in cases of this kind is to keep in view the principles of onus, such as have to be applied from point to point. (After referring to the several documents executed before the gift in question, the judgment proceeded.) We now come to the deed of gift Ex. 6 which Muktamani executed in favour of Haricharan and his two sons, the two defendants. The document sets out the relations between the parties, such as they had been ever since, since the death of Mohesh. Its recitals make it perfectly clear, and there is not a particle of evidence to the contrary that she had become a part of Hari Charan's family. It was Hari Charan and her sons who were looking after her, catering to her needs and ministering to her comforts. Prompted by affection and in recognition of and as a reward for their services, she gave them by this document this property which was only one item out of several properties that she had. (Compare the properties described in Ex. 5). The donees were the only people who had ever cared for her since she had become a helpless widow, though she had properties of her own, and it was only natural that having grown old she should be anxious to do them a good turn. The validity of this transaction has been severely challenged on behalf of the appellants, and a large number of judicial decisions have been cited in which the legal position as regards transactions of this nature has been discussed. The principles bearing on the question are firmly established.
4. In a transaction such as the present, two points generally emerge and they have to be kept distinctly in view; first that the transaction is by a person who by reason of his or her illiteracy or of some such cause has not the usual means of fully understanding the nature and effect of what he or she is doing; and in this category is included transactions by persons, such as pardanashins, whose disabilities under Indian Social usages make them dependent upon or subject to influences of others even though nothing in the nature of deception or coercion may have occurred; and second, that the transaction is in favour of a person who by reason of some fiduciary position that he holds in relation to the one who makes the transfer to his own disadvantage, is under a special liability to establish the good faith of the bargain. The law as regards transactions of the first class has been very fully explained by Lord Sumner in Faridunnisa v. Mukhtar Ahmed, 1925 PC 204, at pp. 350-352. The relevant passages from his Lordship's judgment runs in these words:
The law of India contains well known principles for the protection of persons, who transfer their property to their own disadvantage when they have not the usual means of fully understanding the nature and effect of what they are doing. In this it has only given the special development, which Indian social usages make necessary to the general rules of English law, which protect persons, whose disabilities make them dependent upon or subject them to the influence of others, even though nothing in the nature of deception or coercion may have occurred. This is part of the law relating to personal capacity to make binding transfers or settlements of property of any kind. That the instrument here is a wakfnama is a mere accident, and the general and well settled law of wakf is not in question. The case of an illiterate pardanishin lady, denuding herself of a large proportion of her property without professional or independent advice, is one on which there is much authority.
Independent legal advice is not in itself essential: Kali Buksh Singh v. Kara Gopal Singh (1913) 36 All 81. After all, advice if given, might have been bad advice, or the settlor might have insisted on disregarding it. The real point is, that the disposition made must be substantially understood and must really be the mental act, as its execution is the physical act, of the person who makes it: Wajid Khan v. Ewaz Ali Khan (1891) 18 Cal 545 at p. 148 and Sunitabala Debi v. Dhara Sundari Debi, 1919 PC 24 at p. 278. The appellant clearly had no such advice, nor is it contended that she had. If however the settlor's freedom and comprehension can be otherwise established, or if, as is the respondent's case here, the scheme and substance of the deed were themselves originally and clearly conceived and desired by the settlor, and were then substantially embodied in the deed, there would be nothing further to be gained by independent advice. If the settlor really understands and means to make the transfer, it is not required that some one should have tried to persuade her to the contrary. Again the question arises how the state of the settlor's mind is to be proved. That the parties to prove it are the parties who set up and rely on the deed is clear. They must satisfy the Court that the deed has been explained to and understood by the party thus under disability, either before execution, or after it under circumstances which establish adoption of it with full knowledge and comprehension: Sudisht Lal v. Mt. Sheo Bharat (1882) 7 Cal 245 at p. 43; Shambati Koeri v. Jago Bibi (1902) 29 Cal 749 at p. 131 and Sajjad Husain v. Abid Husain (1912) 34 All 455. Further, the whole doctrine involves the view that mere execution by such a person, although unaccompanied by duress, protest or obvious signs of misunderstanding or want of comprehension, is in itself no real proof of a true understanding mind in the executant. Evidence to establish such comprehension is most obviously found in proof that the deed was read over to the settlor and, where necessary, explained. If it is in a language which she does not understand, it must, of course be translated, and it is to be remembered that the clearness of the meaning of the deed will suffer in the process. The extent and character of the explanation required must depend on the circumstances. Length, intricacy, the number and complexity of the disposition, or the unfamiliarity of the subject matter, are all reasons for requiring an increased amount and efficiency of explanation. Thus a matter not likely to attract the attention of the executant in itself ought not to be relied on as binding, unless her attention has been directly drawn to it: Shambati Koeri v. Jago Bibi (1902) 29 Cal 749 at pp. 132 and 137.
So if the deed, as presented for execution, differs substantially, either by way of addition or of omission, from the scheme and details which the intending settlor has previously laid down, the discrepancy ought to be clearly pointed out and its nature and effect should be fully described, unless, which must be rare, the difference is so obvious that even a person in the settlor's position must perceive and appreciate it for herself. If the description and explanation have been partial or erroneous, or have not been given at all, the question will then arise, as it arises where there has been no independent legal advice, whether, if proper information had been given, it would have affected the mind of the executant in completing the deed. On the other hand, the doctrine cannot be pushed so far as to demand the impossible. The mere declaration by the settlor, subsequently made, that she had not understood what she was doing, obviously is not in itself conclusive. It must be a question whether, having regard to the proved personality of the settlor, the nature of the settlement, the circumstances under which it was executed, and the whole history of the parties, it is reasonably established that the deed executed was the free and intelligent act of the settlor or not. If the answer is in the affirmative, those relying on the deed have discharged the onus which rests upon them. Of course fraud, duress and actual undue influence are separate matters.
5. It should be observed here that if fraud, duress or undue influence is alleged as a ground for invalidating the transactions the law to be applied is that contained in Sections 15 to 19, respectively of the Contract Act. And in a case of undue influence which is generally what is either expressly alleged or impliedly suggested, the onus that has to be discharged by one party or the other is clearly enunciated in the section dealing with it. As regards the second class of cases so far as statute law is concerned it is contained in Section 111, Evidence Act. It says:
Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence the burden of proving the good faith o the transaction is on the party who is in a position of active confidence.
6. The words 'active confidence' it is true indicate that the relationship between the parties must be such that the one is bound to protect the interests of the other. But as Sir Frederic Pollock in his book on Fraud, Misrepresentation and Mistake has observed, the words should, in order that the law may be really protective, receive a wider interpretation. Upon the relations between the parties, such as they appear to have been according to the recitals contained in the document, and in view of the other evidence that there is on the record on this point, it may be conceded that the donees are, on the principle enunciated in Section 111, Evidence Act bound to establish the good faith of the transaction. In the Court of Chancery a class of cases was very familiar in which a donor would come up and impeach a gift which he had previously made. In such cases the rule in the words of Farwell, J., in Powell v. Powell (1900) 1 Ch 243 was this:
It has been for many years well settled that no one standing in a fiduciary relation to another can retain a gift made to him by that other if the latter impeaches the gift within a reasonable time, unless the donee can prove that the donor had independent advice, or that the fiduciary relation had ceased for so long that the donor was under no control or influence whatever.
7. In All-card v. Skinner (1887) 36 Ch D 145, which was a case of this class, Cotton, L.J. explained the principles in these words:
The question is: Does the case fall within the principles laid down by the decisions of the Court of Chancery in setting aside voluntary gifts executed by parties who at the time were under such influence as, in the opinion of the Court, enable the donor afterwards to set the gift aside? These decisions may be divided into two classes: first, where the Court has been satisfied that the gift was the result of influence expressly used by the donee for the purpose; secondly, where the relations between the donor and donee have at or shortly before the execution o the gift been such as to raise a presumption that the donee had influence over the donor. In such a case the Court, sets aside the voluntary gift, unless it is proved that in fact the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justify the Court in holding that the gift was the result of a free-exercise of the donor's will. The first class of cases may be considered as depending on the principle that no one shall be allowed to retain any benefit arising from his own fraud or wrongful act. In the second class of cases the Court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising therefrom being abused.
8. Another case of this class is Inche Noriah v. Shaikh Allie Bin Omar (1929) AC 12. On behalf of the appellant a good deal of reliance was placed on the last mentioned decision because there the donee had independent advice from a lawyer and yet the gift was set aside because the lawyer did not fully comprehend the situation that the donee was making a gift of practically the whole of his property and did not bring home to the mind of the donor that she could more prudently and equally effectively benefit the donee by bestowing the property upon him by will. Now there is no reason why the principle governing this class of cases should not be equally applicable to cases in which the transaction is challenged not by the donee himself but by somebody claiming through the donee after the donee's death. The only difference being that in such a case there is the fact, which has to be thrown into the scale by which the facts are to be weighed, that the donee during the period that he was alive did not challenge the transaction. Mr. Choudhury has therefore on the strength of Inche Noriah v. Shaikh Allie Bin Omar (1929) AC 12 argued that in the case before us it was the duty of the pleader who is said to have helped Muktamani in putting the transaction through to have dissuaded her from making the gift and to have advised her that she could equally effectively make a will bequeathing the property to the intended donee. We are not prepared to regard this argument as well founded. In the first place it should be noticed that it is perfectly plain that in the first of the two classes of cases enumerated above, as Lord Sumner has clearly observed in this judgment in Faridunnisa v. Mukhtar Ahmed 1925 PC 204 independent advice is not necessary but that the burden is capable of being discharged in other ways. And it is also clear from what Lord Hailsham L.C., has said in Inche Noriah v. Shaikh Allie Bin Omar (1929) AC 12 that also is the position as regards the second class of cases. He has said:
But their Lordships are not prepared to accept the view that independent legal advice is the only way in which the presumption can be rebutted; nor are they prepared to affirm that independent legal advice, when given, does not rebut the presumption, unless it be shown that the advice was taken. It is necessary for the donee to prove that the gift was the result of the free exercise of independent will. The most obvious way to prove this is by establishing that the gift was made after the nature and effect of the transaction had been fully explained to the donor by independent and qualified person so completely as to satisfy the Court that the donor was acting independently of any influence from the donee and with the full appreciation of what he was doing; and in cases where there are no other circumstances this may be the only means by which the donee can rebut the presumption. But the fact to be established is that stated in the judgment already cited of Cotton, L.J., and if evidence is given of circumstances sufficient to establish this fact, their Lordships see no reason for disregarding them merely because they do not include independent advice from a lawyer. Nor are their Lordships prepared to lay down what advice must be received in order to satisfy the rule in cases where independent legal advice is relied upon, further than to say that it must be given with a knowledge of all relevant circumstances and must be such as a competent and honest adviser would give if acting solely in the interests of the donor.
9. Nextly, in the present case, Muktamani was not by the transaction, depriving herself of all her properties, but only a small portion of it and it is obvious that she was acting on a motive that is perfectly legitimate and understandable. Lastly, upon the evidence of D.W. 1 the scribe Gopal Sirdar and of D.W. 2 the pleader Pramatha Nath Bhattacharjee there is no doubt whatever that Mukthamani made the gift fully understanding its true nature and effect. The pleader explained to her what the document would mean to her and although the scribe in his cross-examination has tried to help the plaintiff his change of front is too patent to escape detection. We are of opinion that the Court below was right in its decision. We accordingly order that the appeal be dismissed with costs.