1. This Second Appeal is by the plaintiff and it arises out of a suit for declaration of the plaintiff's title to the properties described in the schedule to the plaint. The plaintiff's case in short is as follows :--
One Upendra Nath Biswas, the father of the plaintiff and defendants Nos. 3 and 4, was the owner of the disputed premises No. 22, Madan Paul Lane, Bhowanipore. Upendra died in 1340 B. S. leaving his widow Sinddhubala, a son, the plaintiff and two daughters, defendants Nos. 3 and 4. Sinddhubala is now dead. The plaintiff was a minor at the time of his father's death. Sinddhubala brought her brother, Prafulla Kumar Mondal to help her in the management and protection of the property on behalf of the minors after Sinddhubala lost her husband. Prafulla used to manage the property of the plaintiff. After the death of Sinddhubala, Prafulla was in sole charge of the family affairs of the plaintiff. Prafulla died sometime in the month of Bhadra, 1373 B. S. leaving the defendants Nos. 1, 2, 5 and 6 who are his heirs. In August, 1967 the defendant No. 2 gave out that the defendants have become the owners of the disputed property and the plaintiff thus became suspicious of the conduct of the defendant No. 2. Thereafter the plaintiff instructed one of the relatives to make a search in the Registration Office at Alipur and on 6-9-1967 he got a certified copy of the Deed of Settlement purported to have been executed by him in favour of Prafulla and one Khodanmani Dasi on 9-10-1945. The plaintiff was surprised to come to know the contents of the Deed that in order to give effect the last wish of the plaintiff's deceased father he created the Deed of Settlement. It was alleged that sometime in 1945 when the plaintiff was still a minor he sold some paternal property for the purpose of raising money in order to meet the marriage expenses of his sister the defendant No. 4. Taking advantage of the minority of the plaintiff Prafulla the maternal uncle obtained the Deed of Settlement. It was a fraudulent document obtained by mis-representation.
It was further alleged that the said maternal uncle Prafulla was really a trustee for the plaintiff and as a trustee and guardian he used to manage the property and used to live in the plaintiff's family with the leave and licence of the latter. The plaintiff never intended to execute the Deed of Settlement which was never acted upon. On these allegations the plaintiff filed the suit for a declaration that the Deed of Settlement dated 9th October, 1945 is void and the defendants Nos. 1, 2, 5 and 6 had acquired no right, title and interest in the disputed property by virtue of the said Deed. The plaintiff also prayed for declaration of his title to the disputed property.
2. The suit was contested by the defendants Nos. 1, 2, 5 and 6. They filed a joint written statement alleging that the suit is barred by limitation. It was denied that the plaintiff was a minor at the time when the Deed of Settlement was executed. According to the defendants Upendra Nath Biswas brought his brother-in-law Prafulla when he was 6/7 years old. Prafulla was brought by Upendra as his son. Prafulla contributed a considerable sum of money towards the purchase price of the disputed property and for the marriage of his sister. He used to maintain the family of the plaintiff and to look after the litigation of the said property. Having regard to the services rendered by Prafulla the plaintiff's father during his lifetime expressed his intention for making some permanent settlement for Prafulla and his sister Khodanmani in respect of the property. The plaintiff's father died prematurely and he could not give effect to his last will but he left instruction for fulfilling his last desire. It was alleged that in pursuance of the last wish of Upendra the plaintiff executed the Deed of Settlement out of his will at a time when the was a major. It was alleged that the plaintiff was all along aware of the Deed since its registration. It was denied that the plaintiff continued in possession of the disputed property in spite of Deed of Settlement. It was alleged that the plaintiff not having asked for recovery of possession the suit is hit by Section 34 of the Specific Relief Act.
3. The trial court found that the possession of the disputed property is with the plaintiff and, therefore he was not required to pray for recovery of possession. Upon that view the trial court held that the suit was not hit by Section 34 of the Specific Relief Act. After considering the evidence adduced in the case the trialcourt came to the conclusion that the plaintiff was not a minor on 9th October, 1945 when he executed the impugned Deed of Settlement The trial court further found that the plaintiff did not intend to execute the Deed of Settlement and that he was not aware of the contents of the said document. The trial court, therefore, held that the document was not binding upon him. On the question whether prafulla contributed any money towards the running of the plaintiff's household the trial court found that the money earned by Prafulla from the shop which belonged to Upendra did not represent his income but it was the income from Upendra's shop. The trial court further held upon an interpretation of the disputed Deed of Settlement, Exhibit A that it was a Will and the plaintiff by instituting the suit had revoked the will. The trial court accordingly passed a decree in favour of the plaintiff. Against the decree of the trial court an appeal was taken to the lower appellate court by the defendants Nos. 1, 2, 5 and 6. The lower appellate court affirmed the finding of the trial court that the plaintiff was not a minor at the date of execution of the Deed of Settlement but differed with the other findings of the trial court. The lower appellate court found that the execution of the Deed of Settlement was not merely the plaintiff's physical act of execution but it was his mental act. The lower appellate court also took the view that the Deed of Settlement was a document inter vivoa and it was not a Will. The lower appellate court accordingly allowed the appeal and dismissed the suit. Against the said decision of the lower appellate court the present second appeal has been filed by the plaintiff.
4. Mr. Mukherjee, learned Advocate, appearing in support of the appeal, tried to assail the finding of the courts below that the plaintiff was not a minor at the time of execution of the Deed of Settlement He contended that the said finding of the courts below was based, amongst other, on Ext. H which is the Admission Register of Bhowanipur Sishu Vidyalay, which showed that the plaintiff was aged 6 years 5 months on 28-7-1930. Mr. Mukherjee contended that this School Register was inadmissible in evidence and the courts below having based their decision of the said evidence the said finding cannot stand. We are unable to accept this contention of Mr. Mukherjee, inasmuch as, apart from Ext. H the courts below took into consideration other evidence inthe case. Even if we leave Ext. H out of consideration those evidence on which the trial court and the lower appellate court based their decision the conclusion would follow that the plaintiff was above the age of 18 years at the date of execution of the Deed of Settlement, We must therefore proceed on the basis that the plaintiff executed the document after he had attained majority.
5. The objection which was raised on behalf of the defendants that the suit was barred by Section 34 of the Specific Relief Act inasmuch as the plaintiff did not ask for recovery of possession was not agitated before the lower appellate court. The trial court has recorded the finding on that issue in favour of the plaintiff and it has found that the possession of the disputed premises is with the plaintiff. That finding has not been reversed by the lower appellate court. That point must, therefore, be found in favour of the plaintiff.
6. The next contention which was urged on behalf of the appellant is that the lower appellate court erred in law in proceeding to decide the case upon the footing that it was for the plaintiff to establish that the Deed of Settlement was vitiated on account of fraud and undue influence. It has been contended that having regard to the relationship between the parties and having regard to the attending facts and circumstances the court of appeal below ought to have proceeded on the basis that it was for the defendant to satisfy the court that the impugned Deed was executed by the plaintiff with due understanding of the contents of the documents and it was executed in good faith. On this point the trial court has found that there is no evidence on record that the document was executed by the plaintiff with full knowledge of the contents thereof. It has further found that the plaintiff did not intend to execute the Deed in question. The lower appellate court has on the other hand, found that the execution of the Deed was not merely the plaintiff's physical act of execution but it was also his mental act. This conclusion has been arrived at from the fact that the lower appellate court found some discrepancy between the pleading and in the plaintiff's evidence as to the time when and how the plaintiff came to know about the impugned Deed of Settlement since the time of execution. In our view, this conclusion of the lower appellate court was not justified. Section 111 of the Evidence Act provides that wherethere is a question as to the good faith of transaction between parties one of whom stands to other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. In this case there is ample evidence on record to show that Prafulla was acting as the de facto guardian of the plaintiff. No doubt that at the date of the disputed document the plaintiff was aged about 21 years, but the fact remains that the document was executed soon after the plaintiff attained majority. A minor who is under the influence of his de facto guardian during his minority cannot be expected to come out of that influence merely on attaining majority or within a very short time thereafter. Moreover, there are other attending facts and circumstances which go to indicate that the plaintiff relied upon the advice and guidance of Prafulla in such matters. In his Tagore Law Lecture Sir Frederick Pollock while dealing with fiduciary relation, stated as follows :--
'Different considerations arise when we come to the kind of fraud which is said to be presumed from the circumstances and condition of the parties. It is really a compound, in varying proportions, of fraud and moral coercion. With direct and positive coercion as a cause of avoiding contract we are not concerned. Moreover it is of extremely rare occurrence in modern times. It occurs only too frequently in judicial experience that a person in whom confidence is reposed by another, or who holds a real or apparent authority over that other, makes use of such confidence or authority for the purpose of obtaining advantage over that other which, but for such confidence or authority, he could not have obtained. In such case it is seldom if ever, possible to prove specific acts of deception, or of exercise of authority amounting to moral coercion. Yet the risk of abuse is obviously great. The law therefore reverses its usual rule of evidence in dealing between man and man. Commonly we do not presume, without specific indications, that there is anything contrary to good faith in transactions which on the face of them are regular .....
When one party habitually looks up to the other and is guided by him, he can no longer be supposed capable without special precautions of exercising that independent judgment which is requisite for his consent to be free ..... Therefore it is not enough for the law to saythat gifts and beneficial agreements obtained by the abuse of authority or confidence, by Undue Influence as it is technically termed are avoidable. It also throws the burden of proof on the party taking the benefit. Instead of requiring the party seeking restitution to prove that the transaction was unrighteous, and his consent not free, it requires the parties resisting it to show that the consent was really free, and that all due precautions were used to secure independent judgment.'
In Satish Chandra Ghosh v. Kalidasi Dasi, 34 Cal LJ 529 : (AIR 1922 Cal 203) it was held by a Division Bench of this court that there is a grave risk of failure of justice, if the general principles regarding independent and competent advice in the matter of execution of a document by a person in favour of another standing in a fiduciary character are moulded into inelastic formulas or crystallised into inflexible rules and treated as of universal application regardless of the special facts and surrounding circumstances of the case which requires adjudication. Where there is a question of good faith of a transaction between the parties one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. It was further observed that every variance between pleading and proof is not fatal; the court must carefully consider whether the objection is of form or of substance. The rule that the allegations and the proof must correspond is intended to serve a double purpose, namely, first to appraise the defendant distinctly and specifically of the case he is called upon to answer so that he may properly make his defence and may not be taken by surprise; and secondly, to preserve an accurate record of the cause of action as a protection against a second proceeding founded upon the same allegations. The same view was expressed by another Division Bench of this Court in the case of Benoy Krishna Sadihukhan v. Santi Charan Sadhukhan, 62 Cal LJ 99: (AIR 1935 Gal 671). In the plaint as amended there is positive averment about the fiduciary relation between Prafulla and the plaintiff but there is no specific denial by the defendants in their written statement.
7. The defence case, on the other hand, is that the Deed of Settlement was executed by the plaintiff in deference to thelast wishes of his father, Upendra. Upendra died on July 8, 1936. The disputed document was executed on October 9, 1945. If the document is executed to give effect to the last wishes of Upendra there is no reason why the execution thereof was delayed for ever 9 years. In such circumstances it is only reasonable to expect that the document would have been executed during the lifetime of the plaintiff's mother, Sinddhubala who died on 5th January, 1941. It was argued on behalf of the respondents that as the plaintiff was a minor when his father died he could not have executed the Deed of Settlement. But the plaintiff's mother was living at that time and she was the de jure guardian of the plaintiff. The plaintiff could have executed the document through his natural guardian mother. The Deed of Settlement was executed at a time when the necessity arose for procuring money for the plaintiff's sister's marriage. That was certainly not the appropriate time when such a document should normally have been executed. The lower appellate court has put a great deal of emphasis on the fact that the plaintiff in his evidence had stated that except the Sale Deed Ext. D-1 he had not executed any other document. This statement of the plaintiff, in our view, has to be read in the context of the plaintiff's case and also the statement he had made earlier in his deposition, namely, that his mama made all arrangements regarding the marriage of his sister and that his mama advised him to sell the Turf Road property for the marriage expenses of his sister. It appears from the Sale Deed, Ext D-1, and the Deed of transfer, Ext. A that both the documents were written by one Harinayaan Bhattacharyya. In the Deed of Settlement, the plaintiff was identified by Ardhendu Bhusan Majumdar who is one of the purchasers under the Deed of Sale. In the Deed of Sale the plaintiff was identified by Prafulla Kumar Mondal the maternal uncle of the plaintiff Ardhendu Bhusan Majumdar is also one of the witnesses in the Deed of Settlement the same set of persons are involved in the two documents. The two documents were presented for registration on the same day and at the same time. Then as regards the motive for the execution of the Deed of Settlement namely, that it was executed to give effect to the last wishes of Upendra, we get a different version from the evidence of Manorama, who has stated in her evidence that Panna executed a Deed so that all of us could livetogether. To the same effect is the evidence of Sm. Kironbala Mondal, the mother of Prafulla. This witness was asked whether she knew anything about the execution of a document by the plaintiff so that the defendants could have some interest in the disputed property. In answer to Q. 44 she stated that the document was executed not for the purpose of giving some interest to the defendants but so that the house might not be sold. It also appears from the evidence that soon after the execution of the Sale Deed a house was constructed in Tollysunge by Prafulla. P. W. 3 Manorama, wife of Prafulla has given an explanation that the said house was constructed with the loan taken from Bina-pani, sister of Prafulla. Binapani was alive, but she was not examined. The plaintiff's evidence on the other hand is that the entire amount of Rs. 12,500/- received from the sale of Turf Road property was made over to Prafulla. Having regard to the relationship between the parties and the attending facts and circumstances we are of the opinion that it was tor the defence to satisfy the court that the plaintiff executed the document in good faith knowing the contents thereof. This part of the case was lost sight of by the lower appellate court. We, therefore, hold that the plaintiff was not aware of the contents of the Deed of Settlement, Ext. A when the same was executed by him although at that time he, had attained the age of majority.
8. Some argument was advanced before us on Section 81 and Section 88 of the Indian Trusts Act. It was contended on behalf of the appellant that even if the plaintiff was aware of the contents of the Deed of Settlement Prafulla or his heirs in whose favour it was executed must hold the property for the benefit of the plaintiff in view of the provisions of Sections 81 and 88 of the Trusts Act. In view of our findings recorded above that the plaintiff was not aware of the contents of Ext. A, the Deed of Settlement it is not necessary for us to go into this aspect of the case.
9. The only other point which requires consideration is whether the disputed document, Ext. A, operates as a Deed of Settlement' or it is a Will. The trial court has taken the view that the document operates as a Will. But the lower appellate court has taken a different view and has held that it is a Deed of Settlement. Before we proceed to discuss whether the said document operatesas a Will or as a Deed of Settlement it would be convenient to refer to the relevant clauses of the said document. In the said document the plaintiff is described as the first party. Prafulla Kumar Mondal is described as the second party and Khodonmoni Dasi is described as the third party. After stating the relationship between the parties the document contains certain recitals giving reasons for the execution of the document. It then proceeds to mention the conditions on which the settlement is executed. Clause (1) gives a right of residence to the second and the third party jointly with the first party in the property described in the schedule without conferring upon them any right to transfer. The second clause requires the first and the second parties to maintain the property and to pay the taxes therefor. The third clause deprives the first party of his right to transfer the property during the lifetime of the second and the third party. Clauses 4. 5 and 6 of the said documents which are very material for our' present purpose are as follows:--
'4. I the first party have not yet married. If in future I marry and I have children then my wife and my sons will Set on my death half share of the property described in the schedule in absolute right, with the right to make gift, sale or transfer.
5. On the death of the second party his sons will get half share of the property mentioned in the schedule in absolute right, with the right to make gift, sale or transfer.
6. If I the first party the without getting married then on my death those sons of the second party who will then be alive will get in equal shares the entire 16 annas of the property mentioned in the schedule in absolute right, with the right to make gift, sale or transfer.' The document further contains a proviso to the aforesaid Clauses 4, 5 and 6. It reads as follows :-- 'Be it mentioned that it is only after the death of tine first, second and the third party that the wife and the sons of the first party and the sons of the second party will get the property mentioned in the schedule in absolute right, in terms of the provisions contained in Clauses 4, 5 and 6; but so lone as any one of the first, second and the third party will be alive none of the aforesaid persons will get the property mentioned in the schedule in absolute right, they will have only a right to reside jointly.'
10. It is to be noticed that by Clause 4 the widow and the sons of the first party have been given absolute interest on the death of the first party. Similarly, by Clause 5 the sons of the second party have been given the absolute interest on the death of the second party. Clause 6 provides that if the first party dies without getting married, those sons of the second party who will be alive then will get the entire 16 annas of the property mentioned in the schedule in equal shares in absolute right. From these provisions it was argued by Mr. Bagchi on behalf of the respondents that the interest created in favour of the sons of Prafulla was vested interest under Section 19 of the T. P. Act. It was further contended that it extended to the whole of the remaining interest of the transferor namely, the plaintiff, in favour of the sons who might have been born. It was a valid transfer under Section 13 of the T. P. Act and the Donees or the Settlees acquired a vested right and they took it in absolute right. Mr. Mukherjee on the other hand, has argued that although Clauses 4, 5 and 6 speak of absolute interest the proviso makes it clear that unless and until the first, second and the third parties were all dead the persons mentioned in Clauses 4, 5 and 6 will have no absolute interest in the property but they will have1 a mere right of residence. It will be seen that in the proviso Clauses 4, 5 and 6 have been specifically mentioned and it provides that the settlement made in favour of the persons in Clauses 4, 5 and 6 will take effect in absolute right only after the death of the first, second and the third party, and until then those persons will have a mere right of residence. The proviso therefore controls Clauses 4, 5 and 6 or in other words, the said clauses do not come into operation until the death of all the first, second and the third parties. It was argued on behalf of the respondent that the first, second and third clauses would indicate that the document is a Deed of Settlement and it cannot be a Will because certain rights were conferred upon the second and the third party in praesenti. No doubt the first three clauses confer such right on the persons mentioned therein. The question which then arises is whether the entire document is a Deed inter vivos or a part of it is a Deed inter vivos, and another part a Will. The distinction between a Will and a Deed inter vivos is illustrated by Jarman on Wills where he says 'if a man by Deed, limits lands to the use of himself for life with remainder to the use of A in fee, theeffect upon the usufructuary enjoyment is precisely the same as if he should, by his will, make an immediate devise of such lands to A in fee; and yet the case fully illustrates the distinction in question; for in former instance. A immediately on the execution of the Deed becomes entitled to a remainder in fee, though it is not to take effect in possession until the decease of the settlor, while in the latter, he would take no interest whatever until the decease of the Testator should have called the instrument into operation.' (Vide Jarman on Will 8th Edition, Chap. II, p. 26). To the same effect is the view which has been expressed by K. Shelley Bonnerjee in his Tagore Law Lecture 1901 on the interpretation of Deeds, Wills and States in British India. In Chandmul v. Lachhminarain, (1900) ILR 22 AH 162, it was held by a Division Bench of the Allahabad High Court that a part of a document may be a Will notwithstanding that the same document may contain other provisions which was meant to be carried into effect during the lifetime of the executant of that document. Mr. Bagchi on behalf of the respondents contended that no reason was given in the said decision for the conclusion arrived at and from the facts as stated in the report the nature of the document is not clear and so the said decision should have no application in the present case. It is true that the reasons for the decision have not been mentioned. But it seems that no reason was given because the matter arose out of a reference under Section 17 of the Ajmere Courts' Regulations. But their Lordships in support of the decision referred to two English cases and also the passage in Jarman on Wills noted hereinbefore A similar question arose before the Assam High Court in Tajgram Nath v. Baneswar Nath, AIR 1962 Assam 106. A Division Bench of the Assam High Court held that there can fee no objection in law if one part of an instrument is operative as a Will and another part of the same instrument operates as a document inter vivos giving possession and management of certain properties. In the present case as we have already seen Clauses 1, 2 and 3 make certain provisions with regard to Prafulla and Khodonmoni. Clauses 4, 5 and 6 although mention that the persons mentioned therein would get in absolute right yet by virtue of the proviso the said persons are not to get in absolute right until the death of the first, second and the third party. The proviso therefore controls Clauses 4, 5 and 6 and no right underthe said clauses accrues to the persons mentioned therein until the death of all the three parties. Moreover it would appear from a reading of the aforesaid three clauses along with the proviso that the extent of the share or interest which the sons of Prafulla will get cannot be ascertained until the death of the plaintiff. The said provisions therefore can come into effect only after the death of all the three parties including the plaintiff. In our view, therefore, this part of the document namely, Clauses 4, 5 and 6 read with the proviso operates as a Will. A Will by its very nature is revocable and the plaintiff by institution of the present suit has revoked the Will.
11. For the reasons mentioned above, this appeal is allowed. The judgment and decree of the lower appellate court are set aside and those of the trial court are restored.
12. In the circumstances of the case, we however make no order as to costs.
Sudhamoy Basu, J.
13. I agree.