1. This appeal arises out of a suit brought by the appellant, Karunamoyee Debi to obtain a declaration that a deed of surrender executed by her and by her sister Mayamoyee Debi, defendant 2, on 2nd Baisakh 1343 B.S., corresponding to 15 4-1936, in favour of her son Mahadeb (defendant 1) and defendants 3 to 6 the sons of defendant 2, should be set aside, and that the estate left by her father, the late Bhabadeb Chatterjee, should be partitioned between her and her sister Mayamoyee. There was an alternative prayer that if the deed of surrender could not be set aside or the estate partitioned the plaintiff might be given maintenance at the rate of Rs. 100 per month charged on all the properties left by her father. By a subsequent application, a claim for right of residence in the residential house of Bhabadeb Chatterjee at Burdwan was included in the plaint.
2. The main facts of the case are not disputed and are as follows: Bhabadeb Chatterjee, father of the plaintiff, died on 14-8-1935, leaving the plaintiff Karunamoyee and defendant 2 Mayamoyee as his only heirs under the Hindu law. Prior to his death, he executed certain documents all of which were unregistered. The first was a will of the year 1923, the second a deed of gift dated 20-7-1935 in favour of Karunamoyee, the third will dated 22-7-1935, the fourth a deed of gift dated 24-7-1935, in favour of Mayamoyee, and the fifth a deed of trust dated 6-8-1935, appointing Dr. Debendra Nath Mukherjee, the husband of Mayamoyee, and certain other gentlemen as trustees. After his death, the plaintiff applied for probate of the wills, but probate was refused of the first because some pages were missing. No effect could be given to the deeds of gift or to the deed of trust as they were not registered. After Bhabadeb's death his property was looked after by Mahadeb, the plaintiff's son, and by Dr. Debendra Nath Mukherjee, the husband of defendant 2, and later an ammuktearnama was executed by both the sisters on 22-9-1935, in favour of Mahadeb for management of the entire estate. As Karunamoyee had been ill after her father's death she went to Puri for a change sometime in October 1935, and whilst there she had certain correspondence with her sister Mayamoyee and Mayamoyee's husband, Dr. Debendra Nath Mukherjee. It transpired that Mahadeb's management of the estate wag proving unsatisfactory. Karunamoyee returned to Calcutta about 19-3-1936, and on or about 22 and March following, the ammuktearnama executed in favour of Mahadeb was cancelled. Thereafter, there was certain discussion with regard to the management of the property and eventually on 15th April 1936, Karunamoyee and Mayamoyee executed the deed of surrender, which forms the basis of this suit, whereby they surrendered the entire property left by their father in favour of their sons, defendant 1, and defendants 3 to 6 respectively. The property which was surrendered was included in a schedule and valued at Rs. 12, 718/-but there was a further provision that if any property had been omitted it would also be covered by the deed. By the surrender, Karunamoyee and Mayamoyee divested themselves of all their father's property, without any provision for maintenance. On the same day a deed of partition was executed by and between Mahadeb and defendants 3 to 6, the four sons of Mayamoyee, which purported to divide the property between them in proportion of one-fifth and four-fifths respectively. The properties which each would get were specified in schedules attached to the deed. The value of Mahadeb's share was stated to be Rs. 15,956 out of the total property which was valued at Rs. 80,115/-annas odd, the balance being the value of the property allotted to defendants 3 to 6.
3. It is the ease for the plaintiff that she signed the alleged deed of surrender without understanding or appreciating its contents, that the deed was neither read over nor explained to her and she had no independent advice in the matter. It is said that the plaintiff had absolute confidence in Dr. Debendra Nath Mukherjee, her sister's husband, and the latter having got the plaintiff's son Mahadeb over to his side, had the deed of relinquishment executed by the plaintiff representing to her that the document was absolutely necessary, to save the estate of her father from ruin. Following the deed of surrender the defendants, it is said, in collusion with each other created certain deeds of transfer and mortgage, and defendant 1, purported to transfer by way of sale or mortgage almost all the properties which he obtained on the basis of the deed of partition. Besides defendants 1 to 6 who were parties to the deed of surrender, the plaintiff impleaded as parties-defendants the subsequent purchasers or mortgagees of different item3 of property from Mahadeb and they are defendants 7 to 15 in the suit.
4. Defendant 1 did neither appear nor contest the suit. Defendants 2 to 5 put in one joint written statement traversing all the allegations of the plaintiff and contending inter alia that the deed of surrender was a valid and proper document which was binding on all the parties and could not be set aside. Separate contest was entered on behalf of defendants 7, 8, 9, 10, 11, 14 and 15. All of them supported the deed of surrender and contended further that they were bona fide transferees for value without notice.
5. The issues as finally framed were as follows:
3. Is the plaintiff entitled to any maintenance? If so, at what rate and from whom? Is the maintenance a charge upon property? If so, upon what property?.
4. Is the plaintiff entitled to any decree for alleged arrears of maintenance? Is the plaintiff entitled to any decree for alleged arrears of interest, if so. What is the amount thereof?.
5. Has the plaintiff any right of residence in the house of Burdwan which defendant 1 mortgaged to defendant 7? If so, in what portion?.
6. Is the deed of surrender dated 2nd Baisakh, 1343 B.S. voidable? Can the plaintiff avoid it?.
8. Is the plaintiff's claim barred by the rules of estoppel, waiver and acquiescence?.
9. Is the suit bad for misjoinder of parties and cause of action?.
10. Is the plaintiff entitled to recover possession either against defendants 3 to 6 only or against other defendants as well who are transferees from defen dant 1?.
11. Has the plaintiff cause of action? To what relief, if any, is the plaintiff entitled?.
6. The learned Subordinate Judge held in regard to Issue 6, that the deed of surrender was not a voidable document and that the plaintiff could not avoid it. In his opinion, the idea of partition originated with Karunamoyee herself; she was sufficiently intelligent to understand what was koing done and the effect of the deed of surrender was in any event fully explained to her. The deed of surrender was executed at the instance of Mahadeb with a view to a partition of the entire property between himself and the sons of Mayamoyee, and Dr. Debendra Nath Mukherjee not only was not responsible but tried to safeguard her interest. In answer to issue 8, the learned Subordinate Judge held that there was no general bar but that the rules of waiver, estoppel and acquiescence operated as a bar in so far as the claim against defendant 7 was concerned. Issue 7 was answered in the plaintiff's favour. In respect of issue 10, it was held that the plaintiff was not entitled to recover possession against defendants 3 to 6 or any other defendants who were transferees from Mahadeb, defendant 1. In answer to Issues 3 and 4, the learned trial Court held that the plaintiff was entitled to maintenance at the rate of Rs. 100 per month from her son Mahadeb and that this should be a charge on whatever property remained in the hands of Mahadeb, and whatever property he transferred to such transferees who are not bona fide purchasers for value without notice. He held that the plaintiff was also entitled to a sum of Rs. 3600 as arrears of maintenance for three years and directed that this would be a charge on the property in the hands of Mahadeb and on premises No. 14C, Panehu Khansama Lane and Putni Lot Jalkarghia. He allowed the plaintiff a sum of Rs. 2000 on account of the marriage expenses of her youngest unmarried daughter and directed that this would also be charged on the property charged for her mainteuance. His decision on Issue 5 was that the plaintiff was not entitled to any right of residence in the Burdwan house, but that she had a right of residence in the Saknar house of her father Bhabadeb. He decreed the plaintiff's suit in part in accordance with these decisions. The plaintiff has now appealed.
7. Cross-objections have been filed by respondents 11 and 14. Respondent 11 is the purchaser of premises No. 14C, Panehu Khansania Lane over which a charge for the plaintiff's maintenance was declared by the learned Subordinate Judge; while respondent 14 purports to have purchased the Saknara house in which the plaintiff has been given a right of residence. Putni Lot Jalkarghia, we are told, has been sold under Regulation, VIII of 1819 and a portion of the sale proceeds is still lying with the Collector.
8. The learned Advocate appearing in support of the appeal has raised three points on behalf of his client: It is contended in the first place that there was no free and intelligent execution of the deed of surrender by the plaintiff who as a purdanashin lady was absolutely under the control of her brother-in-law, Dr, Debendra Natb Mukherjee and her son Mahadeb; that she neither appreciated the contents of the deed nor its legal effect and the same were not properly explained to her. The whole transaction, it is said, was vitiated by undue influence which was exercised upon the plaintiff by her brother-in-law, Dr. Debendra Nath Mukherjee in conspiracy with Mahadeb. The second contention raised is that the document of surrender is invalid for want of proper stamp and registration. The third and the last point put forward by the learned Advocate is that the plaintiff should have been given a decree for maintenance against all the defendants and it ought to have been declared a charge on all the properties left by her father.
9. The first point is really the most material point in the case and requires careful consideration. We were taken through the evidence both oral and documentary, at considerable length by the learned Advocates for both parties and after the hearing had proceeded for some days we decided, that it was necessary for the ends of justice and for the proper disposal of the appeal that we should take the evidence of Jibandhan Ganguly who was said by all the defendants' witnesses, who gave evidence to the execution of the deed of surrender, to have been present at the preliminary discussions and to have explained to the plaintiff the purport and effect of the proposals. We thought his evidence to be particularly necessary because the evidence disclosed that he is the plaintiff's son-in law; and amongst the persons alleged to have been present he was most closely connected with her and might be expected to have taken a genuine interest in her welfare and protection. We felt too that if his evidence supported the defence ease, we could safely hold that there was no want of intelligent understanding on the part of the plaintiff or any undue influence leading to the execution. The evidence of Jibandhan Ganguly was accordingly taken by us on 24-6-1946, and ill forma part of the record. The evidence we may sny at once substantially supports the plaintiffs case and is materially damaging to the defence; he has given a total denial to the defence evidence that he was present at the lime of the preliminary discussions about the deed of surrender or that he had at any time any discussion with the plaintiff in regard to the deed or that he explained to her its purport or effect. Indeed, his evidence goes further and indicates that Dr. Debendra Nath Mukherjee suggested to him that the property should be divided between the grandsons of Bhabadeb, and that he took strong exception to the suggestion, mainly because he was aware that Bhabadeb had left a will. We realize that it is unfortunate, and to some extent unsatisfactory, that this witness was not examined at the time of trial, but for this, we think, both parties are equally to blame. 'We realize too that the evidence of this witness may be biased in favour of the plaintiff, whose interest he may be expected to support in preference to that of the defendants; but he is a respectable gentleman and although we think his evidence may be tinged with exaggeration and that he may not be entirely accurate in his recollection or in his interpretation of the proposals made to him by Dr. Debendra Nath Mukherjee, we were on the whole favourably impressed by his demeanour and his general statement; and we cannot easily discard his positive denial of those material facts in regard to preliminary discussions prior to execution of the document, Which he is certainly in a position to know and to remember without any possibility of mistake or confusion.
10. Now, the plaintiff asserts that she is a purdanashin lady and this fact is not seriously chalienged by the other side. The protection given under the Indian law to purdanashin ladies is given to persons who are really kept in seclusion and have little or no commerce with the outside world. The plaintiff belongs to a conservative Brahmin family. She was a widow of about fifty years of age at the time when the deed of surrender was executed and there is no substantial evidence that she had at any time any concern in the management of or dealings with any property. She can therefore claim the protection which the Indian law throws round 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. The law relating to purdanashin women is well settled. It is the duty of the Court before upholding transaction with a purdanashin lady to satisfy itself that the lady had sufficient intelligence to understand the relevant and important matters, that she did understand them as they were explained to her, that nothing was concealed, and that there was no undue influence or misrepre sentation: vide Sunitibala Debi v. Dhara Sundari Debi 6 A.I.R. 1919 P.C. 24. Independent legal advice is certainly not in itself essential. The presence or absence of independent legal advice is only relevant to a decision of the question as to whether or not the grantor thoroughly com prehended and deliberately, of her own free will carried out the transaction. What is necessary to establish is that the import of the document was brought home to the mind of the grantor, and that she really understood and meant to make the transfer. If the settlor's freedom and comprehension can be established by evidence or if it is proved that 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: vide Faridun-Nisa v. Mukhtar Ahmad . The Judicial Committee further held in Sunitibala Debi v. Dhara Sundari Debi 6 A.I.R. 1919 P.C. 24 at p. 278 that it is enough if the general result of the transaction is understood by the lady, it is not necessary that she should understand each detail of a matter which might be involved in legal technicalities. If those founding on a deed by a purdanashin woman fail to show that the grantor intelligently understood the deed there is an end of the matter. But even if intelligent understanding of the deed is established, a question of undue influence may still arise: vide Bank of Khulna Ltd. v. Jyoti Prokash Mitra Such influence may be direct and expressly used by the donee for the purpose, or the relation between the donor and the donee may be such as to raise a presumption of undue influence.
11. We will proceed to examine the entire evidence adduced in this case in the light of the principles laid down above. It must be admitted that the evidence which the plaintiff offered in support of her own case was neither substantial nor particularly satisfying. Indeed, apart from her own testimony there is little evidence which is of value. But as the burden lies upon the defendants to establish that there was free and independent understanding of the contents of the deed by the plaintiff we will have to examine closely the evidence adduced by the defendants taken along with the facts and circumnstances of this case. The plaintiff as stated above, is a purdanashin woman, but she is certainly not illiterate. The various letters written by her which are exhibits in this case prove conclusively that she can read and write Bengali fairly well. Her evidence that she can only sign her name is clearly untrue and was evidently given on improper advice. The evidence also shows that she possesses fair and average understanding. Her own witness Satya Prokash says that after her father's death she used to look after the latter's properties. This obviously means that she looked to some extent after the residential house at Burdwan and the properties situated near about that place. Now the evidence shows that when Bhabadeb died in August, 1935, both the daughters were with their father at that time. The younger daughter Mayamoyee came down to Calcutta very soon afterwards, while the plaintiff, who ordinarily resided with her father at Burdwan, remained there for some time more. Admittedly, she was not in good health at that time and as she was anxious to go away for a change an Ammuhtarnama was executed by her along with her youngest sister in favour of Mahadeb, her son by which the charge of the entire property was given to Mahadeb. This Ammuhtarnama was executed on 22-9-1935, and soon afterwards the plaintiff went to Puri for a change taking some of her daughters with her. Mahadeb, it is admitted by everybody, was and is a man of intemperate and vicious habits. Why he was at all selected to be an Ammuktar it is difficult to see. The suggestion is that both his mother as well as Dr. Debendra Nath Mukherjee thought that the burden of responsibility which was thrown upon Mahadeb might have the effect of improving his character and making him sober and steady. Any way the experiment did not prove to be a success. There were complaints made to Karunamoyee both by her sister as well as by Debendra complaining of acts of indiscretion and mismanagement committed by Mahadeb. They are clearly proved by letters, xs. v (5), v (3), v (8) and v (10). The main charge against Mahadeb seems to be that he was committing default in the payment of Government revenue and rent to superior landlords and the putni properties were in danger of being sold for non-payment of rent. These letters further show that the plaintiff had a high regard for Debendra and was ready and willing to abide by his advice in all matters relating to the management of the estate. From the letters, One gets the idea that some sort of partition was suggested by Debendra or his wife as the proper way of preserving the property, but in what form exactly the partition was suggested it is difficult to say. In the letter, Ex. v (5), the plaintiff was asking Debendra to come down to Puri inasmuch as she was unable to leave the place owing to the illness of her daughter..It is not possible for me to go to you. Better come once... I shall also be free from this anxiety about Una and something will be settled regarding the other matters a well. I will not fail to agree to this.
The latter portion of this letter is somewhat important and runs as follows:.Well, you see that you will be able to manage your affairs even without the properties given by father, but without the same the marriage of my youngest daughter and my maintenance and looking after my daughters, everything will be stopped and I shall have to pass my life in endless misery. It is superfluous for me to write to you about this. You are like my younger brother, so I gave my consent to whatever you said.
In the letter, Ex. v (3), she writes to her sister and brother in-law inter alia as follows:
In any event you two, Mahadeb and Harigopal should meet together and formulate a scheme of partition and write to me about the properties allotted to each share. After that I shall give my opinion....
after partition each one will be able to borrow money for his own needs.
We do not get any indication and in fact it is not the ease of the respondents that any scheme of surrender followed by a partition amongst the grandsons was contemplated by the plaintiff or was suggested by her sister or brother-in-law. On the other hand, it is clear from the letters that the plaintiff was least inclined to efface herself from the world leaving her property to her son or sister's sons. She had six daughters, one of them still unmarried and some of the married daughters were more or less dependent upon her. She points out to her brother-in-law that so far as she was concerned, her father's properties were absolutely necessary to her while Debendra, and his family would be quite well off without these properties. It further appears from these letters that Karunamoyee herself had every reason to be dissatisfied at the conduct of her son Mahadeb. She was not getting any allowance from her son and on the other hand she was very much troubled to leara that a proparty which was given by her fathes to one her daughters was mortgaged by Mahadeo. The evidence shows that money was sent to her by her sister's husband by telegraphic money order and with this money she came down to Calcutta on 19th or 20th March, 1936. Three days afterwards the Ammuktarnama in favour of Mahadeb was cancelled by both the two sisters.
12. It is extremely difficult to determine from the evidence when and under what circumstances the proposals in regard to the execution of a deed of surrender and a deed of partition were first discussed or a decision reached. According to the evidence of Dr. Debendra negotiations with regard to the execution were carried on first with Mahadeb and later on with Mahadeb and Karunamoyee and he says that Mahadeb would not agree to the partition deed unless his mother and aunt executed the deed of surrender. Debendra says that he objected to this proposal and suggested that a common manager should be appointed. But this suggestion was rejected by Mahadeb and his mother, despite the fact that the plaintiff's sons-in-law, Ganga Narayan (P.W. 2) and Jibandhan Ganguly (examined in this Court), and Hari Gopal (D.W. 2) objected vehemently and made requests to plaintiff. Later, this witness stated in cross-examination that Ganga Narayan was not present' before him (paper-book pt. I p. 63) and that a few days after the plaintiff came from Puri, Mahadeb arrived and 'at first hot words passed and then the mother and the son became of one mind.' During this time, he advised that it would be prudent to appoint a common manager and Karunamoyee went to Burdwan before any settlement was reached regarding the future management of this estate. Karunamoyee returned to Calcutta ten or fifteen days later (that is about the first week of April); but before then he had gone to the Ashram about 20th or 21st chaitra and he returned seven or eight days later. Before his return he had learnt from his son Sushil that everything had been settled. From this evidence it would be difficult to determine whether this itness is in a position to say if the plaintif really supported the suggestion for a deed surrender and partition, or whether their implication was explained to her initially. Sushil the eldest son of Debendra says that Mahadeb was not in Calcutta at the time when the Ammuktarnama was cancelled. He came back to Calcutta a few day later and on hearing that the Ammuktarnama, was cancelled he got frightfully incensed and began vilifying everybody not sparing even his own mother. After this excitement subsided there were talks between the mother and the son. Both said, 'Let there be partition instead of this golmal,' the talk being that the two sisters would divide the property between them:
We said that instead of that a common manager might manage the properties. Her son-in-law Jiban Babu also protested to that proposal for partition and accepted this proposal by father for appointment of a common manager. Jiban Babu tried to persuade Maahima (plaintiff) for that but she or Dada (Mahadeb) never agreed to this Then it was decided that the partition would take place between sister and sister and each would get properties as per the deed of gift plus other properties not covered by the same.
Then Mashima and Dada came back to Burdwan, one or two days after that Mahadeb went to Calcutta and said that such a partition could not be made but that to effect that, first there would be deeds of surrender by mother and Mashima and then the partition would be effected. Father and we did not agree to that. Then Mahadeb said that he would bring his mother. So saying he came to Burdwan and took his mother to Calcutta again. Then we sent information to Hari Gopal Babu to come. The question of surrender was the subject-matter of talk amongst father, mother, Mashima, Mahadeb, Hari Gopal Babu and Jiban Babu. Father protested very much saying that such a thing was worse. So did myself, Hari Gopal Babu and Jiban Babu. Mahadeb and Mashima wanted surrender. Mashima said, 'the property which devolves upon anyone may be kept by him if he can, why should others suffer on that account. Hence the properties should be partitioned ... What was then finally decided was that there would be a partition after surrender and that Mahadeb would execute a deed of maintenance of Rs. 150 per month charging his own property. Then Dada and Mashima came back to Burdwan on 22nd Chaitra 1342' (Vide paper book pt. I pp. 112-115).
It is somewhat difficult to reconcile this evidence with that of Debendra in cross-examination, which suggests that he had gone to the Ashram before the settlement in regard to the execution of the deeds of surrender and partition was reached and before the plaintiff came again to Calcutta from Burdwan. One thing, however, is clear from Sushil's evidence, viz., that up to the date when the plaintiff went to Burdwan with Mahadeb after her return from Puri, there had been no specific suggestion for any surrender of the property and the talk up to then related to the suggestion of partition of the property between the sisters.
13. The evidence of Hari Gopal Ganguly in relation to the preliminary discussions is as follows:
Eight or ten days after that (apparently after the cancellation of the Ammuktarnama) I came to Calcutta and heard how the estate would be managed.
Deben Babu said that it would beat be managed by appointing a common manager and keeping the estate as a joint estate. I suggested that would not be convenient but that the two sisters might partition their life estate. At that time Jiban Dhah Gangoadhya was present and he endorsed my proposal, but Mahadeb did not agree but insisted that he would not agree to my proposal unless there would be partition after surrender of the life estates. Then both myself and Jiban Babu explained the position to Karunamoyee and put it to her plainly that if she surrendered, she would have no right to the estate which she inherited from her father. I further added that she would have in that ease to depend upon the charity of her son. We said that to Mayamoyee as well. Karunamoyee said, 'When Mahadeb has been demanding and ultimately he will get the property let Mahadeb s demand be complied with' Lastly it was decided that the two sisters would surrender and that there would be partition amongst their sons.' (Paper book part I, p. 119).
14. It would be seen from this evidence that according to Hari Gopal it was he who Suggested that the property should be partitioned betwean the sisters; and that Jiban Ganguly was present and endorsed the proposal. Sushil, however, makes no mention of the presence of Hari Gopal when a proposal for partition amongst the sisters was made and his evidence is that the proposal emanated from the plaintiff and Mahadeb, and-not only does he not say that Jiban. endorsed the proposal but his evidence is that Jiban protested against, it and tried to persuade them to accept the suggestion for a common manager. The evidence, of Jiban Ganguly to which we have referred above, is of course that he was not present at all at these preliminary discussions and gave no advice to the plaintiff. This being the state of evidence which is, to say the least, discrepant and contradictory, it is difficult for us to say that the proposal for surrender was at all conceived by the plaintiff or even she understood it properly if the suggestion came from anybody else.
15. Turning now to the explanation said to have been given to the plaintiff at the time of the execution, Dr. Debendra Nath Mukherjee said that it was read to her by Nihar Ranjan Babu (D.W. 3) and explained by Hari Gopal (D.W. 2) in the presence of Mahadeb and his sons Sushil and Sunil and also of Dinabandhu Chatterjee. No one he says was asked to attest the deed, probably because it was not thought necessary. As Hari Gopal was a lawyer he would have had it attested if there had been any necessity. Acaording to Dabendra, Mahadeb brought the draft with him from Burdwan.
16. Sushil (D.W. 1) states that after Mahadeb and the plaintiff returned to Burdwan on 22nd Chaitra, Mahadeb wrote him the post card, exhibit V (11), dated 11th April in which it is said:
We are hiving all the deeds ready and Sibram Babu save it is to be done by 2-1-1313 in order to enable to file suite independent of each other. I think I shall reach Calcutta Monday 13-4. You may show the deeds to Satish Babu on that date. I have found out the Imperial Bank letter.
Two days later, he says, Mashima and Dada came to Calcutta with the drafts; and Mahadeb, Hari Gopal and ha went to Satish Babu, who made certain minor alterations. His father returned on 14th April and on that night there was further talk about the deed of surrender in the presence of his father, mother, Mashima, Dada, Hari Gopal and himself. His father again protested but without avail and next day Mahadeb and Hari Gopal purchased the stamps for the deeds which were engrossed and executed. Before the execution, Nihar read the documents and Hari Gopal explained the contents to his mother and Mashima and said that they were deprived of their paternal properties and that these sons would be able to do whatever they liked by sale or gift. Then his mother and Mashima said, 'I know everything about this, what more has to be said about it.' In cross examination Suahil saya that Jiban might have been present when the draft was discussed. He knew that the deed must be read and explained to his mother and Mashima. According to him Dinabandhu Babu (D.W. 4) was the most disinterested person at the time of the execution. But he is a tenant of the defendants and lives in a portion of the house in which Debendra Nath Mukherjee and his family resides. Suahil says too that Nihar is a disinterested person but he is an employee of the defendants and takes his food in their house. We cannot regard either of these witnesses as entirely distnterested.
17. Hari Gopal says that Mahadeb brought the draft deeds from Burdwan and that the draft was shown to Safcish Babu pleader by Sushil Mahadeb and himself and Satish made some formal alteration. After the deed was written, Nihar read the body portion to Mayamoyee and Karunamoyee. Then the witness explained the effect of the deeds to the ladies and told them that they were divesting themselves of their rights in favour of their sons. He asked them if the deed wa3 in order, and they said 'Yea' and executed it of their own free will and accord. They fully understood the document and its effect. He says that the same evening Jiban came to the house and Karunamoyee met him and talked with him and he was informed of the execution of the deed. At that time too it was settled that a deed of maintenance would be executed; Rs. 150 was talked of as the monthly maintenance for Karunamoyee. But when the deed was being written Mahadeb said that the amount should be Rs. 100 and Karunamoyee said, 'Whan Mahadeb says Rs. 100 let it be so'. In cross examination he said that as the deed was by females he thought it necessary to explain it to them but he did not think it necessary to note this on the document. As the deed of partition was amongst the boys and trouble might arise amongst them it was considered prudent to witness tha execution of that deed.
18. Nihar Ranjan (D.W. 3) says he wrote the body of the deed of surrender and he read it to Karunamoyee and Mayamoyee and Harigopal explained it to them before execution. Karunamoyee, he says, signed after fully understanding the contents. He says too that on 20th Chaitra Karunamoyee told him that the two sisters would surrender their estate in favour of their sons and when he said to her that there would be nothing left for her she said, 'It belongs to our sons, We are giving to our sons the property due to them. Why should we stand all this botheration?' According to him Harigopal told the ladies, 'You have divested yourselves of the estate in favour of your sons who may do anything and you have no power of control over the estate now.' According to him, Karunamoyee looked at the deed herself for about ten minutes before she signed.
19. Lastly, Dinabandhu Chatterjee (D.W. 4) says that Karunamoyee asked him to be present at the time of execution. When he came he saw Nihar reading the deed to the executants and then Hari Gopal explained it to them saying that from that day they would have no right to the property and that the effect was as if they wore dead and that the sons would do whatever they liked. Then the two sisters signed. Karunamoyee said, 'What does it matter, we know everything.' Karunamoyee signed after reading it over. This witness also says that once before the deed of surrender was executed, Karunamoyee asked him to take her to Apurbadhan Mukherjee Advocate's house for consultation about the proposed deed of surrender. Apurbadhan Mukherjee was her cousin sister's son'. He took her to Apurbadhan Mukherjee and came away. In answer to Court's question this witness aaid that the plaintiff told him that as Mahadeb was not managing the property well therefore let them so divide the properties. This she said one or two days after her return from Puri. She said she was thinking of a tyagnama (deed of surrender). Then he said to her, 'You have got only one son. It is all the same whether the property be with you or with your son. Do what you consider best' Later he said, 'I don't remember if I cautioned Karunamoyee that if she gave the property to Mahadeb, he would squander it in no time. I did not ask her to take advice of others.' Further to the Court he said:
I could not follow and understand the deed when Nihar Babu read it out and Hari Gopal read it to the ladies. I could understand that after Hari Gopal Babu explained its effect. When Nihar was reading the main body of the document sheets containing the schedules were lying on the floor; when Nihar handed the main body of the deed to Hari Gopal Babu even then the sheets of schedules lay on the floor.
20. We think it probable in view of the foregoing evidence that some sort of explanation of the deed of surrender was given to the plaintiff and it is not unlikely that she realized that a division of her father's estate was being made and that the management and control of their share would thereafter be in the hands of their sons. We are, however, far from being satisfied that she had any real appreciation of her own position or of the practical effect of the surrender or of the partition which was contemplated, whereby a life interest in one-half of the estate was being exchanged for a permanent interest in one-fifth of the estate which Mahadeb would in any case inherit on her death. The idea of a surrender by a female owner is not quite familiar to a layman in our country, and we think that with regard to the exact effect of the deed she required legal advice. In all probability, as her own evidence shows, she would have been perfectly willing to let the control of her share in the property pass on to her son. But we think it was necessary to explain to her clearly that there was no provision made either for maintenance or for residence in the deed of surrender itself, and that once the deed was executed she would have no power to compel any of the surrenderees to give her anything by way of maintenance or to make any provision for her residence in the family dwelling house of her father. There was none to point out to her that although one of her daughters was still unmarried, the deed of surrender loft her no property with which she could defray the marriage expenses of the unmarried daughter or give any pecuniary assistance to the indigent daughters who were dependent upon her. We have doubts, as we will explain more fully later on, as to whether it was a voluntary act of self-effacement on her part by which a Hindu widow is entitled to put an end to her own rights in the property and accelerate the succession of the reversioners. It clearly appears from the evidence set out above that the draft deeds were prepared at Burdwan where the plaintiff had gone with her son Mahadeb. Up to the time of going there with Mahadeb, discussions have been confined mainly to the question whether a common manager should be appointed or the estate should be partitioned between the two sisters. A few days after their going to Burdwan Mahadeb intimated his unwillingness to agree to anything short of surrender followed by partition between himself and the sons of Mayamoyee; and when the plaintiff returned to Calcutta a few days before the deeds were executed, she supported Mahadeb's demands. During all this time she had not, so far as the evidence shows, had the benefit of advice from ordiscussion with anyone except Dr. Debendra Nath Mukherji, his son and Hari Gopal and even though we are not prepared to hold that they encouraged Karunamoyee to give effect to Mahadeb's demands we feel considerable doubt whether they actively opposed her. Even after her return to Calcutta from Burdwan where quite obviously she must have been subjected to Mahadeb's influence, no arrangement was made for her to have any independent advice in the matter. Dinabandhu Chatterjee has gone to the length of saying that he took the plaintiff at her request to the house of Apurbadhan Mukherjee, Advocate. The story does not seem to us to be true. The plaintiff did go to Apurba Babu it is true, but long after the deed of surrender was executed. If Dinabandhu's evidence is true the best thing for the defendant would have been to examine Apurba Babu as a witness. The most disinterested person with whom the plaintiff had any discussion according to Sushil either prior to or at the time of execution was Dinabandhu and yet Dinabandhu advised the lady when he heard that a deed of surrender was contemplated, to use his own words, 'You have got only one son. It is all the same whether property be with you or with your son.' We do not think that advice of this nature was at all calculated to explain to the plaintiff the import of the proposals or what their practical effect would be.
21. It is not disputed that Jibandhan Ganguly was not present at the time of execution. According to Hari Gopal, Jiban came in the evening after the execution of the deed and it was not until then that it was settled that a deed of maintenance would be executed. Jibandhan Ganguly has denied going to Debendra's house at any time in connection with the deed of surrender or of having any discussion with the plaintiff about it; and we see no adequate reason for distrusting his evidence on this point. Even if he did go after the deed had been executed, it seems to us extraordinary that the plaintiff should have been allowed to execute the deed before anything definite had been settled in regard to her maintenance, the marriage expenses of her unmarried daughter or her right of residence in the family dwelling house or at least before the provisions for maintenance were included in the deed itself. The parties could have been under no illusion as to Mahadeb's character or as to his previous improvident dealings with the property. It was his mismanagement which had necessitated the plaintiff's recall from Puri and a few days previously it had been found necessary to cancel the Ammuktamama which had been executed in Mahadeb's favour. The omission to provide in the deed any safeguard for the plaintiff's maintenance or her rights of residence raises a grave suspicion that her interest was not sufficiently considered and confirms our belief that she had no proper advice which could enable her to appreciate what the effect of her action would be.
22. The document does not on the face of it bear any endorsement that it was read over and explained; and it was not attested. It may be for these reasons that evidence was offered that Jibandhan Ganguly, who might be regarded as a witness who would look after Karunamoyee's interest, explained the nature and effect of the proposals to her. Another fact which is established by evidence is all that was read or explained to the plaintiff was the bare deed of surrender; the deed of partition was not read to her nor were the schedules of the property which was being given to Mahadeb or his cousins. At least there is no evidence that they were read over Nihar Ranjan says that he does not remember if he read out the schedules, Dina. bandhu says that the schedules were lying on the floor when Nihar Ranjan read and Hari Gopal explained the body of the deed. During the course of argument, it was contended for the respondents that the partition deed was made on the basis of the deeds of gift which Bhabadeb had executed in favour of Karunamoyee and Mayamoyee and that in fact approximately one-half of the property was given to Mahadeb. We find it difficult to determine from the available evidence the extent to which this contention is correct; and, in any event, we cannot say if these deeds of gift were a fair or satisfactory basis for the distribution of the property. There is moreover no indication in the deeds that either the surrender or the partition had any connection with or reference to the deeds of gift or any other document executed by Bhabadeb or that they were made on any such basis. On the other hand the intrinsic evidence of the deeds is that the property was being surrendered and partitioned, according to the position which would arise if both Karunamoyee and her sister were dead; one-fifth would be given to Mahadeb and fourfifths to the sons of Mayamoyee. That the property was divided in this proportion is further shown by the fact that the total value of the property covered by the schedules was estimated at Rs. 80, 115, out of which schedule Kha valued at Rs. 15,956, was given to Mahadeb and the balance to his cousins. We are far from being satisfied that these facts were explained to the plaintiff or that she realized that by the surrender she was losing a life interest in half of the estate left by her father.
23. There is a letter Ex. V (9) on which reliance was placed by the learned Subordinate Judge and by the respondents at the time of hearing in support of the contention that the plaintiff was quite aware of what she had done and of the position resulting from her action. Even assuming that it is so we do not think that the subsequent appreciation can remedy the matter or remove the defect of want of intelligent understanding at the time of execution. This would also explain the statement of the lady upon which stress was laid by Mr. Sen on behalf of the respondents that if Mahadeb had given her maintenance regularly and provided for the marriage expenses of her daughter she would not have quarrelled with the deed of surrender. We think it is quite clear that the deed of surrender was executed with a view to placate Mahadeb, and Ex. V (9) was written a few days later when the plaintiff was alone with Mahadeb at Burdwan. The language used is not such as we would have expected the plaintiff to employ and we have no doubt that the major portion was inspired by Mahadeb. We do not thinkthat the plaintiff had any appreciation of the necessity for registration of the deed of maintenance which had been prepared after the execution of the deed of surrender and the very fact that in the letter she writes, 'My deed has not been registered not is there any necessity for the same being registered' confirms our suspicion that the letter was not the outcome of Karunamoyee's brain; and even if ,the plaintiff did write in this vein we regard it as a matter of suspicion that those persons who must have realized the necessity for registration of the deed of maintenance took no steps apparently to explain the position to her or to delay the registration of the deed of surrender until the deed of maintenance was also registered. On a consideration of the evidence as a whole, we are not satisfied that the deed of surrender was properly and fully explained to the plaintiff or that she really understood what its effect would be.
24. Even assuming for argument's sake that the plaintiff did understand the general effect of the deed, and in that aense there was intelligent, execution, we have no doubt in our minds that her understanding was in the present case affected by undue influence which was exercised upon her by her son Mahadeb. The circumstances of the case clearly show that a most insidious and subtle influence was exercised upon her, which left her no will of her own. Mahadeb wanted to have the property in absolute right for satisfying his own immoral needs, and he took full advantage of the affection which a widowed mother has even for her erring son, only to serve his own purposes.
25. For a decision on the question of undue influence, we would rely on the observations of their Lordships of the Judicial Committee in Mahomed Buksh v. Hossaini Bibi ('88) 15 I.A. 81 and the principles laid down therein. It is said at p. 92 of the report:
Where undue influence is alleged, it is necessary to examine very closely all the circumstances of the case. The principles are always the same though the circumstances differ, and as a general rule the same questions arise.' The questions as enunciated by their Lordships are:
(1) Was the transaction a righteous transaction, i.e., was it a thing which a right-minded person might be expected to do?.
(2) Was it an improvident Act 1. That is to say does it show so much improvidence as to suggest the idea that the lady was not mistress of herself and not in a state of mind to weigh what she was doing?.
(3) Was it a matter requiring a legal adviser?.
(4) Did the intention of making the gift originate with the donor?.
26. The questions may conveniently be considered together. We have already shown that during the few months that elapsed between the death of Bhabadev and the cancellation of the Ammuktarnama executed in favour of Mahadeb, Mahadeb had incurred the displeasure of his mother and Mayamoyee and her family, and had shown his unfitness for management of Bhabadev's estate. The evidence of both parties establishes beyond doubt that Mahadeb was a worthless and profligate son not tempered and quarrelsome. The Ammuktarnama, was apparently executed with a view to trying to reform him by developing a sense of responsibility but within a few months it was found necessary to address the letter Ex. N (1) to him and to threaten recourse to the Courts unless he rectified his ways. A short time later, the Ammuktarnama was cancelled and when Mahadeb came to Calcutta he abused his mother and all concerned and threatened to assault his uncle Deben Mukher jee. He resisted all suggestion for appointment of a common manager and was not agreeable to a proposal for partition among the sisters. Such a partition would be of no advantage to him, and he was already deprived of the management of the estate by cancellation of the Ammuktarnama. What he desired intensely was to have some property which he might call his own. Up to the time when he went back to Burdwan taking his mother with him, there was absolutely no willingness or inclination on the part of the plaintiff to surrender her property or to divest herself of all interest therein. The evidence is quite sufficient to establish that the idea of a surrender did not originate with the plaintiff. She herself was not anxious to retire from the world. On the other hand, as she stated in one of her letters to Deben, she was very much in need of the properties which she got from her father, not merely for herself but for her daughters, one of whom was still to be married. Strangely however, she yielded to the demands of Mahadeb as soon as she returned to Calcutta. We feel no doubt that her support of, or acquiescence in, Mahadeb's demands was brought about merely by the pressure and insistence to which she was subjected by Mahadeb, when she was left alone with him at Burdwan. It is possible that she was induced to agree to Mahadeb's demands partly out of a desire to win her son's affection and partly to end the friction which Mahadeb's attitude and conduct was causing in the family, but we have no doubt that the entire basis of her agreement was the influence which Mahadeb exercised over her.
27. We realise that it is not the specific case of the plaintiff who in her plaint, and to some extent in her evidence sought to shelter Mahadeb and to throw the blame on Deben Mukherjee, but none the less we are satisfied that this is the truth.
28. As we have said above, the idea of a surrender did not originate with the plaintiff. It is difficult to say that it was an act which a widow in the position of the plaintiff could be normally expected to do, and there could be no doubt that it was an improvident transaction, which she would not have done had she been a free agent in the matter. We do not think that she contemplated at any time that she would deprive herself of all means of maintenance and all claims on the property so far they might be necessary to defray her necessary expenses.
29. It was moreover clearly a matter requiring a legal adviser and as we have already mentioned, the only legal advice she is shown to have received prior to the surrender came from Hari Gopal who was an interested person, and whose evidence cannot be regarded as entirely satisfactory or reliable.
30. Our conclusion therefore is that not only was there a want of intelligent execution of the deed of surrender, but the plaintiff was also subjected to undue influence. In our opinion therefore issue No. (6) as framed by the Court below should be answered in favour of the plaintiff and the deed of surrender should be set aside.
31. In view of this conclusion, the second point raised by Mr. Choudhury is of little importance. In support of his contention, that the deed of surrender is invalid because it has not been properly stamped or attested, he has relied upon the decision in In re Khetramoni Debya 25 A.I.R. 1938 Pat. 33. It was held therein that a deed executed by a Hindu widow holding a limited interest in favour of the next heir renouncing her claim in the property and giving up possession is to be stamped as a gift under Article 33 and not as a release under Art.' 55, Stamp Act. Mr. Sen has challenged the correctness of this decision and has referred to the discussion regarding the nature and effect of the relinquishment of her estate by a Hindu widow in Huguenin v. Baseley (1806) 14 Yes. 273 Janaki Nath v. Jyotiah Chandra : AIR1941Cal41 the latter decision, the observations of their Lordships of the Privy Council in the former decision have been quoted with approval and followed. They are:
It must be remembered that the basis of the doctrine is the self effaeement of the widow's interest, and not the ex-facie transfer by which such effaeement is brought about. The result is merely that the next heir of the husband steps into the succession in the widow's place.
32. Having regard to this principle, Mr. Sen has contended that by a surrender of the present nature, there is no transfer of property such as is necessary to make the transaction a gift as defined in the Transfer of Property Act. In any event, he has argued that even though it be held that the deed should be stamped as a deed of gif t it will not convert the document into a deed of gift so as to require its attestation, and the objection as to insufficiency of stamp cannot operate now to prevent its admission in evidence by reason of Section 36, Stamp Act. We think on the whole that Mr. Sen's objection must prevail. No detailed reasons have been given in the decision reported in Sitanna v. Viranna referred to above, and it appears that the question was not fully argued before the Court. Clearly the deed of surrender does not in law or in fact purport to transfer any property. The widow merely withdraws herself from the estate and 'the next heir steps into the inheritance as a matter of law, without any consent or acceptance on his part.' As the Privy Council has laid down in more cases than one, the surrender by a Hindu widow need not be in any particular form. Whatever might be said in regard to case, where it takes the form of a gift, certainly it does not come within Article 33, Stamp Act where it is in the nature of a relinquishment and not of gift.
33. In the present case it is not in the form of a deed of gift, and, in our opinion, it did not require to be stamped or attested as such. This contention of Mr. Choudhury must therefore fail.
34. As we have held that the deed of surrender is voidable, and should be set aside the third point raised by Mr. Choudhury does not arise for consideration at all.
35. The only point that remains for consideration is whether the plaintiff is entitled to any relief against those defendants who are transferees of the different items of property from Mahadeb. Defendant 7 took a mortgage of the Burdwan house from Mahadeb and got a preliminary mortgage decree on 6-9-38 which was made final on 21-11-38 He purchased the mortgaged property in execution of his mortgage decree during the pendency of this litigation.
36. Defendant 9 purchased putni lot Barasati from Mahadeb for a consideration of Rs. 3750, while defendant 10 purchased another lot namid Dihi Kaligram from Jogendra Pal Mayer to whom it was sold by Mahadeb. Defendant 11 purports to be the purchaser of premises No. 14 (c) Pancbu Khansama Lane. Defendants Section 12, 13 and 14 seem to be unnecessary parties, while the only point raised on behalf of defendant 15 in the Court below seems to be that as a creditor of Mahadeb, he was entitled to realise his dues for the properties obtained by the latter on the basis of the deeds of surrender and partition. He did not claim to be a transferee of any of the properties in suit. In this Court for the first time it was sought to be argued on his behalf that he was a purchaser of the Saknara house belonging to Bhabadeb Chatterjee and no right of residence should have been declared in favour of the plaintiff in respect to that house. This was not the point raised in the Court below or in the memo of cross-objection presented by him in this Court. We have no materials to determine what his rights in regard to the Saknara house are, and we cannot entertain his claim at this stage or decide as to whether he is a bona fide purchaser or not. The point therefore that requires consideration is whether defendants 7, 9, 10 and 11 who are transferees of some of the properties included in the deed of surrender are or are not to be affected by setting aside of that document.
37. It was laid down by Lord Eldon in the well-known case in Huguenin v. Baseley (1806) 14 Ves. 273 that an interest obtained by undue influence cannot be held by third parties although innocent of fraud:
Whoever received the gift, must take it tainted and infected with undue influence and imposition of the person procuring the gift, his partitioning and cantoning it out amongst his relations and friends will not purify the gift and protect it against the equity of the person imposed upon.
But no equity can be enforced against a person who is a bona fide purchaser for value without inotice of the imposition. Such person always jreceives protection from Equity Courts. In the case before us, the evidence that is adduced on behalf of defendants 7, 9 and 10 seems to be sufficient to show that they took transfer of the properties on the strength of the deed of surrender and the subsequent instrument of partition. Nothing was suggested by the plaintiff in her own evidence, or in cross-examining the witnesses examined on behalf of these defendants that they had any notice of the plaintiff's want of due understanding of the deed of surrender or the undue influence that was exercised on her. The transfers in favour of these persona cannot therefore be avoided. We cannot agree with the trial Court in holding that the rule of estoppel operates against the plaintiff in favour of defendant 7, but there is no doubt that defendant 7 was a bona fide mortgagee who advanced money in good faith, without any notice of the impurity of the title of defendant 1. Defendant 7 however was not a purchaser but a mortgagee and he purchased the mortgaged property in execution of his mortgage decree only after present suit was instituted. We think that in these circumstances the plaintiff and defendant 2 cannot be deprived of their right to redeem the mortgage of defendant 7 on the basis of the decree that we are going to make in this suit. We would allow three months time from the date of the arrival of records in the Court below to the plaintiff and defendant 2 to pay off the mortgage decree obtained by defendant 7 together with interest up to the date of the sale. If the payment is made the mortgage sale would be set aside and the defendant 7 would be directed to restore possession of the property purchased by him to the plaintiff and defendant 2. On failure to redeem the mortgage, within the time mentioned aforesaid, or within such further time as the Court below might grant, the sale would stand.
38. So far as defendant 11 is concerned, it seems that her purchase of the premises No. 14 (c) Panchu Khaneama Lane was not proved in the trial Court and she could not adduce any evidence on the point. Mr. Mitter appearing in supporting her cross-objection has contended before us that owing to unavoidable circumstances her case was not presented properly in the Court below. He produced the document of purchase before us and prayed for an opportunity to adduce evidence to show that she was a bona fide purchaser for value without notice. We think that we should accede to his contention and as the case is going back to the trial Court, this question should be investigated by the learned Sub-Judge.
39. The result therefore is that we allow this appeal and reverse the judgment and decree of the trial Court. The deed of surrender is set aside. Plaintiff's title to the properties left by her father with the exception of those which have been sold under Regulation 8 [VIII] of 1819, or vested in bona fide purchasers for value without notice as indicated above is declared jointly with her sister defendant 2 and the Court below would partition the properties between them in such way as it considers proper. The case of defendant 11 would also go back for reconsideration as indicated above.
40. The sale proceeds of Patna lot Jalkarghia that are lying with the Collector would be declared to belong jointly to the plaintiff and defendant 2. The plaintiff would have her costs of this Court as well as of the Court below from defendants 1 and 3 to 6. The defendants would bear their own cost of both the Courts. Defendant 1 and defendants 3 to 6 are also directed to pay the court fees payable on the memorandum of appeal to this Court amounting to Rs. 1020.
41. Let a copy of this decree be forwarded to the Collector.