1. This is an appeal in a suit for partition and accounts. The plaintiff in the suit, the respondent in this Court, claimed partition of properties on declaration of her title to the same which she asserted she had inherited from her father, Sheikh Ramjan Ostagar, who died on 7th November 1932, leaving the plaintiff and her step-brother, appellant in this Court, defendant in the suit in which this appeal has arisen. The plaintiff's case was that two deeds of gift and a wakfnama said to have been executed by her father on 4th September 1929 were invalid, void and ineffective in law. One of the two deeds of gift it may be noticed was in favour of the plaintiff herself, while the other was in favour of the defendant; the wakfnama purported to be for religious and charitable purposes and for the maintenance of the settlor and his descendants. The deeds of gift and the wakfnama were according to the plaintiff absolutely fraudulent and fictitious documents, and were not acted upon or intended to be acted upon and there was never any change in the character of the management of the properties or their possession even after the dates of the aforesaid deeds or at any time thereafter; and the plaintiff and the defendant had all along been possessing the said properties jointly as secular properties inherited from their father, the said Sheikh Ramjan Ostagar. The plaintiff asserted in her plaint that she was not aware of and did not admit the execution of the said deeds by the said Sheikh Ramjan Ostagar and further that even if the said three deeds be proved to have been actually executed by the plaintiff's father they were absolutely invalid and inoperative in law, having been brought about by the defendant to defraud the plaintiff and to deprive her of her just and legitimate share in her father's estate and they were vitiated by fraud and undue influence of the defendant practised on the plaintiff's extremely old and imbecile father at a time when he became physically infirm, was incapable of understanding anything properly and was suffering from extreme ill health and had not a sound disposing mind nor a fit mental capacity to execute such deeds validly and had no independent legal advice to do so. On the above basis prayers made in the suit for partition were that the plaintiff might be given a decree for partition of her one-third share in all the properties mentioned in Schs. A, B and C to the plaint and that a decree for accounts might be passed against the defendant, and also for other reliefs ancillary to the same.
2. The claim as made in the plaint was resisted by the defendant and the allegations of fact made in the plaint were controverted in the written statement filed in Court. On the pleadings of the parties, three distinct issues were raised on the merits of the case for the plaintiff. Issue (7): Is the deed of wakfnama executed by Ramjan Ostagar valid and legal? Issue (8): Are the properties mentioned in Sch. 'ka' of the plaint wakf properties? Isssue (9): Are the deeds of gift executed by Ramjan Ostagar valid and legal? The learned Subordinate Judge in the trial Court decided the issues mentioned above and passed a decree in favour of the plaintiff. It was declared by the trial Court that the deed of wakf and the two deeds of gift purported to have been executed by deceased Ramjan Ostagar were null and void and inoperative in law; and it was directed that a pleader commissioner be appointed for effecting the partition of immovable properties described in Schs. A and B of the plaint and another pleader commissioner be appointed for settlement of account between the parties from November 1929 up to the date of the institution of the suit in July 1933. The defendant appealed to this Court from the decision and decree of the trial Court.
3. The main controversy in the case before us related to the real character of the transactions evidenced by the two deeds of gift and the wakfnama by Sheik Ramjan Ostagar on 4th September 1929: Did the documents represent the real intention of the party executing them, or were they brought into existence under undue influence exercised by the defendant Sheikh Abdul Rouff on his father Sheik Ramjan Ostagar? The question of execution of the three documents appears to have been raised before the trial Court, but on materials on record, regard being had to the evidence of execution and the evidence relating to the registration of the documents, no importance could be given to the plaintiff's case that the deeds of gift and the wakfnama were not executed by Sheik Ramjan Ostagar, so far as his putting his signature to the same was concerned. The real question was whether such undue influence was exercised upon Sheik Ramjan Ostagar by his son Sheik Abdul Rouff in the matter of bringing about the transactions in question represented by the two deeds of gift and the wakfnama as would make them invalid and inoperative. There can be no question that the principles embodied in Section 16, Contract Act, must guide Courts in coming to conclusion in a case in which the issue as to exercise of undue influence is raised. A document of gift or for the matter of that, a wakfnama, may fail for any of the reasons which may go to invalidate the contract, such as domination, undue influence, or coercion: see Musa Fida Rasul v. Yakub Beg . According to the rules enacted in the statutory provisions referred to above, where the relations subsisting between the parties are such that one of them was in a position to dominate the will of the other and used that position to obtain an undue advantage over the other the question of exercise of undue influence comes in.
4. A person is in a position to dominate the will of another where he holds a real or apparent authority over the other, specially in the case in which the other person is one whose mental capacity is affected by reason of age, illness or bodily or mental distress. If the transaction in question appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such transaction was not induced by undue influence lies upon a person in a position to dominate the will of the other. This is in consonance with the principles adopted by Courts in England, and as it has been said, as no Court has ever attempted to define fraud, so no Court has ever attempted to define undue influence, which includes one of its many varieties. There are cases in which there has been some unfair and improper conduct, some coercion from intention, some over-reaching, some form of cheating, and generally though not always, some personal advantage obtained by one placed in some close and confidential relation to another. There may be cases also where it is necessary to show that the party concerned had independent advice and was removed from the influence of the other party: Allcard v. Skinner (1887) 36 Ch D 145 at p. 181. As their Lordships of the Judicial Committee of the Privy Council have observed, the Court, in dealing with cases of undue influence, has to consider four different questions connected with each other: (1) whether a transaction is a righteous transaction i.e. whether it is a thing which a right minded person might be expected to do; (2) whether it was improvident, that is to say, whether it shows so much improvidence as to suggest the idea that the donor was not master of himself and not in a state of mind to weigh what he was doing; (3) whether it was a matter which required legal advice; and (4) whether the intention of making the gift originated with the donor: Muhammad Buksh Khan v. Hossinee Bibi (1888) 15 Cal 684. (After discussing the evidence the judgment proceeded further). On a consideration of the materials on the record which have received our careful consideration we express our agreement with the conclusion, on evidence arrived at by the trial Court, that the deeds of gift and wakfnama purported to have been executed by Sheikh Ramjan Ostagar on 4th September 1929, were not acts of his free will. They were, as found by the trial Judge, brought into existence by Sheik Abdul Rauff during a state of imbecility on the part of his father.
5. We are further of opinion that the Judge in the Court below is right in holding that the wakfnama in question was a mala fide document and was brought into existence by undue influence exercised over Sheik Ramjan Ostagar by his son Sheik Abdul Rauf with the intention of depriving the plaintiff, his stepsister, of her just and legal share in her paternal properties, and was invalid and inoperative as such. The above decision arrived at by us, concludes the case for the appellant in this Court. Questions on the construction of the wakfnama executed by Sheik Ramjan Ostagar,. bearing upon the nature of the disposition made by the document, were raised before the trial Court, and were argued in the appeal before us. It is not necessary to give any decision on those questions, in view of our definite conclusion that the wakfnama was not an operative document; but we may express our opinion on the document which was considered by us in all its details. The document conveys properties to the mutwalli. There is no clear dedication of properties by way of wakf as contemplated by Mahomedan law to God; there was no provision for application of the income of properties dealt with by the wakfnama, after the death of the settlor, Sheikh Ramjan Ostagar; there was no substantial or definite dedication of the income of properties to religious or charitable purposes nor was there any disposition of any part of the income for the purpose of maintenance of the descendants of the settlor's family or children, as contemplated by Section 3, Musalman Wakf Validity Act, 1913. On a careful consideration of the recitals and the dispositive clauses of the wakfnama, we are left with the impression that what was said of the document by the plaintiff in her plaint filed in Court was right, namely that the deed was ambiguous and incomplete, and was a mere fictitious document. In the result, the decision and decree of the trial Court, against which this appeal is directed, are affirmed, and this appeal is dismissed with costs. The hearing fee in this appeal is assessed at ten gold mohurs.