Lancelot Sanderson, C.J.
1. This is an appeal by the plaintiff from the judgment of Greaves, J., dismissing her suit. The nature of the claim and the defence are fully set out at the beginning of the learned Judge's judgment as follows : 'The plaintiff in this case is the daughter of one Haji Kader Bux, deceased, a Muhammadan of the Eraki sect or community who died on the 28th August 1907, leaving him surviving three sons, the defendants Shaik Mahomed Ibrahim, Shaik Mahomed Solaiman and Abdus Samad, five daughters, namely, the plaintiff and the defendants Hakima Bibi, Khadija Bibi, Ayesha Bibi and Khairunnessa Bibi, and two widows, Waziran Bibi and Mohatabo Bibi, the last named being the mother of the three sons and five daughters. The plaintiff claims to be entitled to 7/88 of her father's estate and amongst other reliefs asks for an enquiry of what the estate consists, and for partition thereof. The defendants other than those above mentioned are two sons of a brother of Haji Kader Bux named Hazir Bux, with whom he used to carry on business in Calcutta and elsewhere, and who succeeded to - their father's share in business, and one Mahomed Siddick who was and is entitled to a share in the profits of the Calcutta business.
2. The plaintiff's claim is resisted upon three grounds which appear in the written statement of Shaik Mahomed Ibrahim and which are as follows:
(1) That Haji Kader Bux left no property, having during his lifetime disposed of it by two Hebas, the first of which was made on the 22nd April 1897 in favour of the defendant Shaik Mahomed Ibrahim and of the share of Haji Kader Bux in the Calcutta business, and the second of which was made on the 19th July 1907 in favour of his three sons and of the rest of his property.
(2) That the Eraki community, although governed in all other respects by the Sunni School of Muhammadan Law, is governed in matters of succession and inheritance by Hindu Law, and that by the law and custom governing the parties the plaintiff is not entitled to any share in the estate of Haji Kader Bux if he in fact left any estate.
(3) That by a deed of release, dated the 10th January 1908 the plaintiff for valuable consideration released any right and interest she had in her father's estate.
3. It will be convenient to set out the material dates: 22nd April 1897 was the date on which the 1st Heba relating to the Calcutta business is alleged to have been made by Kader Bux.
13th October 1904--The purchase of the house 47, Taltolla Lane.
7th February 1907--The dissolution of partnership so far as Abdul Gunny was concerned.
19th July 1907--The alleged 2nd Heba by Kader Bux.
28th August 1907--The death of Kader Bux.
31st October 1907--The Hebanama of Hadjee Bux.
5th November 1907--Hadjee Bux died.
9th January 1908--The deed of re-lease.
9th June 1908--Petition of Mahomed Ibrahim for guardianship.
4. The learned Judge found that the two Hebas were in fact made and that they were valid and operative under Muhammadan Law. This decision really disposed of the case, and it is this question which was first argued by the learned Counsel for the appellant.
5. The verbal evidence as to the first Heba has been summarised by the learned Judge in his judgment, and I need not refer in detail to that with which he has already dealt: the principal evidence relating thereto is to be found at pages 24, 46, 47, 63, 64, 128, 135, 136, 136, 339 to 377, 403 to 414, 424, 425, 432 of the paper-book,
6. As regards the constitution of the Calcutta firm at the date of the first Heba, viz., April 1897, it appears that the partners entitled to share in the profits were Kader Bux, Hazir Bux, Abdul Grunny and Mahomed Siddik (see page 345 of paper-book), that Kader Bux's account was entered in the books of the Calcutta firm under the name of Haji Kader Bux Mahomed Ibrahim (see page 127 and the accounts), Kader Bux resided generally at Kotwari, but sometimes at Calcutta: Mahommad Siddick and Hazir Bux were the managers of the Calcutta firm.
7. The defendant Ibrahim had at the time of the alleged Heba been about 2 years in the firm and had been working chiefly as cashier, but going about with his uncle Hazir Bux and looking after the business of the firm generally (see page 135). There were other businesses at various places in which Kader Bux and Hazir Bux were interested, and it was under these circumstances that Kader Bux is alleged to have -made over his share in the Calcutta business to Ibrahim, who at that time was his only son, or, in the words supposed to have been used by his father, ' to have made him owner just like myself and made him seated on my guddi'.
8. With regard to the first Heba, I am satisfied on the evidence that there is no ground for interfering with the learned Judge's finding that a transaction purporting to transfer Kader Bux's share in the Calcutta business to Ibrahim was in fact made.
9. But it is said that the transaction was a benami one. The verbal evidence of those connected with the business is against thin allegation, and, in addition to the other matters relied on, the evidence goes to show that Kader Bux took no part in the working of the Calcutta firm after the first Heba.
10. Before the date of the first Heba there were three accounts--1st, an account in the name of Kader Bux Mohamed Ibrahim, which was Galled during the hearing the partnership account--2nd, an account in the name of Kader Bux which was drawn upon by Kader Bux for his expenses--3rd, an account in the name of Mahomed Ibrahim which was an interest account.
11. After the alleged Heba, the first account was put into the came of Mahomed Ibrahim, and the other two accounts remained in the same names. The 2nd account remained in the name of Kader Bux, but Ibrahim drew upon it for his expenses. It seems curious if Kader Bux had ceased to have any connection with the firm, that this account should have remained in the name of Kader Bux, but it was pointed out that this was not exceptional in the case of this firm, for there was a similar account in the name of Hazir Bux, and after his death the account was kept in his name, his sons drawing upon it for expenses. At the time of the alleged Heba the balance standing to the credit of Kader Bux was debited to him and credited to Mahomed Ibrahim, and the accounts were thereafter dealt with as if Ibrahim was a partner. Further more in the deed of dissolution of February 1907 Ibrahim is treated as a partner, be and Hazir Bux taking over the share of the outgoing partner, and no reference is made to Kader Bux. But certain matters were relied upon by the appellant as showing that the verbal evidence, confirmed as it is by the deed of dissolution and the accounts, could not be relied upon--and that the transaction was really a benami one.
First, it is said that the application for guardianship made on the 9th June 1908 admitted the title of the minor brothers to a* share in the house No. 47, Taltolla Lane, which, according to the defendant's case, had become the property of the firm after Kader Bux ceased to be a member, and also to a share in the Calcutta business. The learned Judge having seen and heard the witness has accepted the evidence of the defendant Mahomed Ibrahim, who appeared to him a reliable witness, as to how the application came to be made and the' details inserted, and I am not prepared to interfere with his finding of fact thereon. Ibrahim said he could not write or read Urdu : it is to be noted that if he did know what was in the details contained in the application for guardianship, he was deliberately creating evidence contrary to the Base which he set up in the Court below. It is urged, however, that it was after he made this application that he changed his mind, and decided to defraud his two brothers; this seems to me improbable and is inconsistent with the learned Judge's finding that in his opinion Ibrahim was a witness of truth.
Secondly,--that the house No. 47, Taltolla Lane was conveyed to Kader Bux and Hazir Bux on 13th October 1904, seven years after the first alleged Heba. It is true that the conveyance is to Kader Bux and Hazir Bux. But the consideration for the sale was money advanced by the Calcutta business and the Exhibits 12B, 13B, 14A and 15A confirm the verbal evidence that this house belonged in reality to the firm; repairs were charged to the firm and the rent was included in the profits which were divided among the partners. To make the matter more clear we had the pages represented by Exhibits 12B and 15A translated by one of the Court Interpreters and Translators, and these show conclusively that the entries were made under the beading of the firm, and in particular that the sum of Rs. 434-11-6, which was the balance on the house account, was included in the amount credited to the profit account of the firm.
Reliance, however, was placed on the Hebanama of Hazir Bux of the 31st October 1907 (which document and the deed of dissolution of partnership were admitted by consent of learned Counsel for the plaintiff and Mahomed Ibrahim during the course of the argument) as showing that this house did in fact belong to Kader Bux and Hazir Bux, and not to the firm.
I am not prepared to disturb the learned Judge's finding, having regard to the verbal evidence, corroborated as it is by the firm's books, that this house was the property of the firm and that Kader Bux and Hazir Bux must be taken to have held it in trust for the partnership.
Thirdly, reliance was placed on the statement in Hazir Bux's Hebanama that Kader Bux had 'owing to its being considered advisable,' or according to another translation for 'politic reasons,' substituted the name of Mahomed Ibrahim in the place of his own in the books of the shop and had also declared his son to be owner of his share and had got the credit and debit entries made in the name of Mahomed Ibrahim: I agree with the learned Judge that this is not conclusive against the Heba, and indeed the reference to the declaration by Kader Bux that his son was owner of his share may be said to be consistent with the Heba having been made.
Fourthly--it was urged that Mahomed Ibrahim was only 16 or 17 years old at the date of the Heba and that it was improbable that his father would entrust him at so early an age with his share in the business. This is a matter for consideration undoubtedly, but upon such consideration it must be remembered that the evidence was that Mahomed Ibrahim's uncle was the manager together with Siddik and that apparently his father had not taken a very active part in the working of this part of the joint business.
Fifthly--it was urged that the father would not have given the one son so large a portion of his property: In this connection it must be remembered that at the time Mahomed Ibrahim was the only son; it is said that Kader Bux's wife was in the family way, but the child was not born until eight months afterwards, and there is no evidence to show that Kader Bux was aware of his wife's condition at the time of the alleged Heba; apparently at that time the Calcutta business was not so valuable and did not bear such a large proportion to the rest of the father's property as it did afterwards.
12. There is, however, another matter upon which much reliance has been placed by the learned Counsel for the appellant, viz., that in the deed of release of 9th January 1908, Mahomed Ibrahim submitted a statement that the Calcutta business belonged not to him only, but to him and his two brothers,
13. The beginning of the declaration in this deed is not inconsistent with the case of the defendant Ibrahim, but on the contrary to some extent it confirms it, inasmuch as it recites that it was the intention of Kader Bux to give away the whole of his properties to his three sons Mohamed Ibrahim, Mahomed Solaiman, and Abdus Samad, and with this object he made his eldest son Mohamed Ibrahim the proprietor of the shop in Calcutta,' which may be taken as a reference to the first Heba in 1897; but it then proceeds to say that prior to his death 'he made a gift and gave away all his moveable and immoveable properties situate in District Balia, Calcutta, and Muzafferporo to his sons aforesaid and made them proprietors and put them in possession of the same, etc.'
14. In the schedule the Calcutta shop is specifically mentioned as part of the property which was held and possessed by the three sons as proprietors in accordance with the oral gift and grant aforesaid.
15. On the face of the deed, therefore, there appears to be an inconsistency for in the one place it is declared that for the purpose of carrying out his intention of giving away all his property to his three sons he made Ibrahim the proprietor of the Calcutta shop in another place it is declared that the shop was held and possessed by the three sons as proprietors.
16. By reference to one of the Court Interpreters it appeared that the words in the original which have been translated 'the oral gift and grant,' are more accurately translated thus : 'the Heba and oral gift.
17. Such words are, in my judgment, consistent with either case, viz., that there was a Heba and subsequent oral grant, or that there was only the Heba which is further described as an oral grant. It is urged that the above-mentioned, statements are not inconsistent if the first Heba of 22nd April 1897 is regard ad as a benami transaction; it should, however, be noted that so far as the deed itself is concerned, it makes it clear at any rate that the intention of Kader Bux was to give all his property to his three sons, and even if the first Heba was in the nature of a benami transaction, the second was not, and if that was a good and valid Heba, transferring all Kader Bux's property to the three sons the plaintiff's claim would be defeated.
18. We are asked to conclude that the abovementioned description of the property in the deed is so inconsistent with the evidence of Mohamed Ibrahim that his evidence should not be accepted. The learned Judge in the course of a very careful and exhaustive judgment do as not deal with this particular point, and I am not surprised, for 1 cannot find that a single question was put in cross-examination of the defendant Ibrahim as to how the Calcutta business came to be described in the schedule to the deed as belonging to the three sons and not to him only. This loads me to think that not much reliance, if any, was placed on this point at the trial.
19. In the course of its preparation the deed went through several hands, and instructions apparently were given by various people to three individuals at least at different times, and it may be that in consequence confusion may have arisen. What happened was this. Shukrulla got the draft prepared, apparently on verbal instructions, at Allahabad by Nawab Abdul Majid, a Barrister-at law. This draft was read to him by the Barrister's clerk and he says that he noticed that in the draft no amount of money was mentioned and no list of property was included, while in the deed, which subsequently he heard the Sub-Registrar read and explain to the ladies, these matters were mentioned.
20. Next, the draft was taken by Abdul Hamid and Haji Ahmed to Moulvi Abdalla a Pleader at Ghazipur, who was called a witness and who identified the draft. In this draft there is no list of properties: and by reference to the original the draft finishes at the end of the third Clause (or 1st paragraph on page 147 of the paper-book) and by the interpreter's translation, the words 'verbal gift' in clause three should be 'Heba and verbal gift.'
21. The draft was then shown by Ibrahim to a Pleader at Bashra, Lala Ramkrishna Lall.
22. The draft and stamp were then taken by Ibrahim, Haji Ahmed and Abdul Ahmed to Hadi Hossain, a scribe, for the purpose of his making a fair copy, and to him was given a 'list of the properties'--See page 84 of the paper-book.
23. As far as I know, there is no evidence as to who made up the list of properties or how the properties came to be described in the manner set out in the deed. I under-stand the deed is written in Urdu, a language which, as already mentioned, Ibrahim has sworn he cannot read or write. The comment made as to the schedule in the application for guardianship is applicable to the schedule of this deed, viz., that if Ibrahim did not know how the property was described in the schedule, he was deliberately creating evidence which would be contrary to the case he was about to set up.
24. I am not surprised that a deed passing through so many hands and prepared in such a manner as that above mentioned should present some inconsistencies, and though this deed is an important; factor in the case, I do not think, having regard to the above-mentioned matter?, so much importance should be attached to it as if the whole of it (including the schedules) had been settled by a competent conveyancer.
25. This deed unexplained, added to the other matters already referred to, does raise some doubt in my mind, as to whether the first Heba was a benami transaction, and it is very unfortunate that this particular matter was not drawn to the attention of the defendant, so that the Court should have been in possession of any explanation he might have been able to give. On the other hand the learned Judge has seen the witness Ibrahim in the witness-box and subjected to a long cross-examination, and he has come to the conclusion that he was a truthful and reliable witness, and in ray judgment it would not be just or fair to the defendant for this Court, sitting as a Court of Appeal, to come to the conclusion that his evidence must be unreliable because of the contents of the schedule of this deed and the criticisms of learned Counsel upon it, when the point was never put to the defendant in the Court of first instance. He has sworn that this was not a benami transaction: this evidence is corroborated by other witnesses and by Mahomed Siddik (who was also described by the learned Judge as a reliable witness), the entries in the books, and the deed of dissolution of partnership; and in a case like this where the documentary evidence is conflicting, in my judgment great weight should be given to the opinion of the learned Judge who has seen and heard the witnesses and this is a case in which very important witnesses were seen and heard by the learned Judge. The principle on which a question such as this should be dealt with by a Court of Appeal is laid down in Colonial Securities Trust Co. v. Massey (1896) 1 Q.B. 38 : 65 L.J.Q.B. 100 73 L.T 497 : 44 W.R. 212, where Lord Esher said: 'We must see first of all what is the rule of conduct of the Court of Appeal when hearing an appeal on a question of fact from the judgment of a Judge trying a case without a Jury. It cannot be shaped according to the rule of conduct of the Court of Common Law before the Judicature Acts, but must follow that adopted by the Courts of Appeal in Chancery, because before that Court only could an appeal from a Judge sitting without a Jury have then come. In the Courts of Equity the matter appealed against was the decision of a Judge and for that reason such an appeal was called a re-hearing, since the Court could set aside the decree or judgment of the Judge who had tried the case, and pronounce another decree or judgment. The Court of Appeal in Chancery acted upon this rule, that they would not allow an appeal unless they were satisfied that the Judge was wrong. If they were' in doubt, at the end of the argument, whether the Judge was right or wrong, since the burden of proof was on the appellant and he had not satisfied them that the Judge was wrong, they dismissed the appeal. That is the rule of conduct which we ought now to apply in this Court. The Judge in the Court below may have heard witnesses; and if so, the Court of Appeal would be more unwilling to set aside his judgment, especially if there was a conflict of evidence, than in a case tried on written evidence where the witnesses were not before the Judge, because of the opportunity afforded of judging how far the witnesses were worthy of credit.' The burden of proof is now on the appellant and I am not satisfied that the learned Judge was wrong on this point, and I, therefore, think that his judgment on this point should not be disturbed.
26. With regard to the second Heba of 19th July 1907, the learned Judge has found that the existence and validity of the second Heba was established. As regards the question whether a gift was in fact then made by Kader Bux to his three sons, in my judgment, there was ample evidence to support the learned Judge's finding. As regards the extent and the effect of the gift, I am satisfied on the evidence that Kader Bus intended, as stated in the deed of release dated 9th January 1908, to give the whole of his property to his three sons to the exclusion of the rest of his family. If the first Heba was not of a benami nature, then the defendant's case is proved in its entirety; but even if it was benami, the object and intention of the second Heba was to vest all Kader Bux's property in his three sons, which would be sufficient to bar the plaintiff's claim, provided that the gift was a valid Heba. In this connection I may point out that much reliance was placed by the plaintiff on the Hebanama of Hazir Bux as showing that the first gift of Kader Bux was benami. This document was executed on 31st October l907, two months after Kader Bux's death and about two months before the deed of release. If this document is to be accepted as showing the true state of affairs as the plaintiff urged, it is strongly against the plaintiff on this part of the case; after reference to Kader Bus's death the words of the document are : 'Now his sons, S.M. Ibrahim, Mohamed Solaiman and Abdus Samad, are in his place holding and possessing the property left by him as owners,' a clear indication that the plaintiff was not entitled to any share in her father estate.
27. The validity of the second Heba is disputed first on the ground that it was a gift by Kader Bus to Mahomed Ibrahim, an adult, and to his other two sons who were minors at the time, and was consequently void, reliance being placed upon the rule of Muhammadan Law as to confusion. Certain texts in support of this proposition were relied upon, and the text of Al Hakim may be taken as an example. Al Hakim states : 'A man makes a gift of a house to two of his sons, one of whom is adult and the other is a minor and the adult son takes possession (of it). The gift is absolutely void, and this is the correct view. For the gift in favour of the minor is complete at the very moment of the declaration of the gift because the seisin or possession of the father is equivalent to his (minor's) seisin or possession. '(Qabz): Whereas the gift in favour of the adult son stands in need of acceptance. Thus the gift in favour of the minor precedes (that in favour of the adult), and thus confusion (shuyu) is occasioned. And the device is that he (father) should deliver possession of the house to the adult son and then make a gift of it to both of them. Thus it is laid down in the Wajiz of Al Kardari.'
28. Fatawa Alamgiri. Vol. IV, p. 549, Ed. Cal., and the case of Nizam-ud-din v. Zabeda Bibi 6 N.W.P.H.C.R. 338 was also referred to
29. If the rule above stated applies to this case, it must be given effect to : but it is to be noted that it has been laid down by the Judicial Committee of the Privy Council in Muhammad Mumtaz Ahmad v. Zubaida Jan 161. A. 205 at p. 215 : 11 A. 460 : 5 Sar. P.C.J. 433 : 6 Ind. Dec. (N.S.) 721 that the doctrine relating to the invalidity of gifts of Musha is wholly unadapted to a progressive state of Society and ought to be confined within the strictest rules.
30. The principle of the rule in question seems to be that when a person makes a gift to an adult, and an infant, who is in the donor's care Or guardianship, the donor is assumed to take seisin at once of the minor's share, whereas the gift in favour of the adult requires acceptance, and thus confusion is occasioned.
31. According to the evidence in this case, the gift of the property was made to Ibrahim and his two younger brothers, and Kader Bux asked Ibrahim to accept the property on behalf of himself and his two brothers--see for instance pages 128, 137 and 379 of the paper-book; and that he then banded over all the documents to Ibrahim requesting him to take charge of them for himself and his two younger brothers.
32. If this evidence is accepted as to the manner in which the gift was made, it seems to me that it does not come within the above rule, for Ibrahim must be taken to have accepted the property for himself and his brothers at one and the same time and thereby placed himself in the position of trustee or guardian for his brothers, and consequently the donor would not take seisin of the property for his younger sons and no 'confusion' would arise.
33. There appears to be no dispute as to the validity of a gift to two donees, one of whom is an adult and the other a minor, but who is not in the guardianship of the donor at the time of the gift.
34. No case has been produced to show that the doctrine relied on has been applied to such a case as the present, and keeping in view the opinion of the Privy Council that it should be kept within the strictest rules, I am not prepared to extend it and apply it to this case.
35. Next it was urged that possession had not been given in such a way as to make the gift valid. According to Muhammadan Law, seisin or actual possession does not seem to be necessary to complete the Heba--and the correct view seems to be that the donor must evince his intention of making a complete transfer of the ownership in the -property from himself to the donee by placing the latter in a position to enjoy it beneficially, or to make use of it consistently with its purpose, and in considering this question the relationship of the parties must be kept in view. In other words, to be in a position to take possession is tantamount to taking possession: and to place the donee in a position to take possession is equivalent to delivery of possession--similarly investing with authority for that purpose is equally sufficient--see the authorities cited at pages 90 and 122 of Ameer Ali's Muhammadan Law, Vol. I, 4th Edn. In this case as regards the share in the Calcutta business and the Taltollah house, Ibrahim was in fact in possession at the time, and as regards the rest of the property, the second Heba seems to have been made with much publicity, and by handing over all the documents, keys, Rokars, books, etc, which Kader Bux possessed in respect of all his properties to Mahomed Ibrahim, and by asking him to take charge thereof, Kader Bux intimated his intention of giving him possession, and thereby put him in a position to take possession. In addition there is some evidence that from that date the donees did take possession, see for instance pages 128 and 137 of the paper-book.
36. For these reasons, in my judgment, the Heba of the 19th July 1607 which the learned Judge has found was in fact made, was valid according to Muhammadan Law.
37. That being so, the whole of Kader Bux's property passed by reason of the two Hebas to his sons, and the plaintiff has no claim thereto. This conclusion is sufficient to justify the dismissal of the appeal.
38. Other points, however, were argued before us and it is necessary, therefore, to express my opinion thereon.
39. The defendant Ibrahim attempted to establish by evidence a custom to the effect that in the Eraki community, to which the plaintiff and Ibrahim belonged, females do not under any circumstances inherit any property.
40. With regard to this, in the first place, it is to be noticed that this was not the custom pleaded.
41. The pleadings alleged that the members of the Eraki community were governed in the matter of succession and inheritance by the Hindu Law. Under that law, as is well known, under certain circumstances females do inherit. In the second place, it was admitted that such a custom as the defendant attempted to establish had never yet been recognised in any Court of Law in India. Thirdly, there was evidence brought forward by the plaintiff showing some instances where the alleged custom had not been followed, and there was general evidence produced by the plaintiff against the existence of such a custom. Fourthly, the defendant's witnesses were not agreed as to the incidents of the custom, as for instance, Ibrahim himself at page 393 said, 'I am not fully aware of the provisions of Hindu Law, but if under certain circumstances females inherit under that form of law, the same thing applies to us under certain circumstances as well.' Such a statement is inconsistent with the custom attempted to be established, viz., that under no circumstances do females inherit, and it was contrary to the evidence of his witnesses taken on commission,
42. Again some of the witnesses asserted that it was part of the custom to maintain mother and sister (e.g., Abdul Mian's evidence at page 78), whereas others declared that the sister and mother have no right to maintenance (see Abdul Latif, page 65, Abdur Salam, page 57, Wahbullah, page 52, and Musammat Khadija, at page 106, who declared that her position was no better than that of a charity girl or a slave girl).
43. Now a custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly: Hurpershad v. Sheo Dyal 3 I.A. 259 at p. 285 : 26 W.R. 55 : 3 Sar. P.C.J. 611 : Bald. 25 : 3 Suth. P.C. J. 304 : Rafique & Jackson's P.C. No. 41 (P.C.), and Sir Montague Smith in giving the judgment of the Privy Council in Ramalakshmi Ammal v. Sivanantha Perumal 14 M.I.A. 570 at p. 585 : 17 W.R. 552 : 12 B.L.R. 396 : 2 Suth. P.C.J. 603 : 3 Sar. P.C.J. 108 : I.A 4. Sup. Vol. p. 1 : 20 E.R. 898 said: Their Lordships are fully sensible of the importance and justice of giving effect to long established usages existing in particular districts and families in India, but it is of the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that Courts can be assured of their existence and that they possess the conditions of antiquity and certainty on 'which alone their legal title to recognition depends.'
44. In my judgment the evidence in this case does not comply with the above mentioned essentials. I do not think the evidence is clear or unambiguous: it does not show with certainty what the custom was: and the custom sought to be proved varies from that relied upon in the pleadings: and for these reasons I agree with the learned Judge that the evidence failed to establish the custom relied on.
45. The last question which I need to consider is that relating to the release of the 9th January 1908.
46. The learned Judge has found on the evidence as a fact that the deed was explained to the plaintiff and that she did receive the consideration of Rs. 4,500 and that the deed was not executed by her through misrepresentation and fraud. In my judgment there was ample evidence on which the learned Judge was entitled to arrive at this conclusion, and I am not prepared -to interfere with his finding of fact in this matter. The fraudulent representation relied upon was that the defendant Ibrahim had represented to her that the document was merely a power-of-attorney necessary for the preservation of the estate. The deed was executed on her behalf by her husband, but when the plaintiff came to Court making the claim in this case, his evidence was that he himself was a party to a fraudulent conspiracy to deceive her.
47. This witness was examined before the learned Judge who disbelieved him, and it is to be noted that during the course of the argument in this Court the learned Counsel for the appellant stated that he could not support the contention as to the fraudulent representation, and that he must also throw over the evidence of the plaintiff's husband. This is material, for it amounts to an admission that the plaintiff, in order to avoid being bound by the release, set up a case at the trial which the learned Judge has found to be a false one, and which, it is now admitted, cannot be supported.
48. It is not necessary for me to go through the evidence as to the explanation of the deed to the plaintiff or the receipt of the money by her : I think, however, it is desirable to draw attention to the endorsement on the deed by the Sub-Registrar; This gentleman could not be called as a witness as he is dead, but the memorandum endorsed by him in the course of his duty as Sub-Registrar contains material corroboration of the evidence on the questions of explanation and receipt of the money.
49. Further, it is to be noted that the deed was executed in an open manner, the maternal uncle and husband of the plaintiff, amongst others, being present and signing the deed.
50. I think it must be taken from the evidence that the plaintiff and her husband knew perfectly well what she was doing by executing the release, and that the plaintiff received the money. This is in accordance with the learned Judge's finding of fact : it may, however, well be that her husband, who was in need of money, disposed of it.
51. It cannot be said that she had not independent advice : for she was living with her husband, and his story, no doubt made up for the purpose of this claim, that he was a party to a deception upon her having been discarded, it must be taken that he, knowing well the facts of the case and what was in the deed, was in a position to advise her.
52. But it is urged that this was a case in which the plaintiff, being a Pardanshin lady, should have had independent legal advice, and that she was labouring under a mistake as to her rights both as regards custom and the Hebas or gifts referred to in the release.
53. The law with regard to this question has been laid down by the Judicial Committee of the Privy Council in Mahomed Buksh Khan v. Hosseini Bibi 15 I.A. 81 at. P. 91 : 15 C.684 : 12 Ind. Jur. 291 : 5 Sar.P.C.J. 175 : 7 Ind. Dec. (N.S.) 1040 and Kali Bakhsh Singh v. Ram Gopal Singh 21 Ind. Cas. 985 : 36 A. 81 at. p. 91 : 26 M.L.J. 121 : 18 C.W.N. 282 : 19 C.L.J. 172 : 16 Bom. L.R. 147 : 15 M.L.T. 1230 : (1914) M.W.N. 112 : 12 A.L.J. 115 : 16 O.C. 378 : 41 I.A. 23 (P.C.) : 1 O.L.J. 67 In the latter case it is stated at page 91 * that there is no absolute rule of law that a Pardanshin lady must have independent advice. 'The possession of independent advice or the absence of it is a fact to be taken into consideration and well weighed on a review of the whole circumstances relevant to the issue of whether the grantor thoroughly comprehended and deliberately and of her own free will carried out the transaction If she did, the issue is salved and the transaction is upheld, but if upon a review of the facts which include the nature of the thing done and the training and habit of mind of the grantor as well as the proximate circumstances affecting the execution: if the conclusion is reached that the obtaining of independent advice would not really have made any difference in the result then the deed ought to stand.' As regards the custom, the learned Judge finds that it may well be that there has been a practice among certain families of this community to exclude women from succession, though there was not a custom in the true legal sense of the word: and I doubt very much, if the plaintiff had obtained independent legal advice on this point, it would have made any difference or prevented her from executing the release. But even if she had been' advised that there was no such custom binding on her as that alleged in the release, there was the fact of the two Hebas the second of which was made in her presence and of the first of which, according to the evidence, she must have been fully aware : As by one or both of these Kader Bux, in my judgment, made a valid and effective disposal of all his property to his sons, it cannot be said that when she executed the deed she was labouring under any mistake as to her rights in this respect or that the parties in this respect were labouring, under a mutual mistake or misapprehension as to their respective rights. For these reasons, in my judgment, the deed of the 9th January 1908 was a good and valid deed whereby the plaintiff for good consideration relinquished all claim and right to her father's properties.
54. With reference to this deed of release, the learned Counsel for the plaintiff relied upon it as showing that there was only one Keba, that by such Heba all the property passed to the three sons, and consequently the defendant's case as to the first Heba could not be sustained. With this I have already dealt in the course of my judgment: and I only refer to it again to point out that even if this contention be accepted in its entirety, there still remains the second Heba in the plaintiff's way, and I am satisfied on the evidence that, whether by reason of the two Hebas or, (if, contrary to the view expressed by the learned Judge, the first was merely a benami transaction) then by reason of the second Heba, Kader Bux intended to dispose and did dispose of all his properties to his three sons to the exclusion of the other members of the family, and whatever the rights of the sons might be 'inter se,' this would dispose of the plaintiff's claim, for as far as she is concerned it would be immaterial whether the property passed by one or both of the Hebas.
55. Speaking generally of this case, the learned Judge tried the case at great length and examined the evidence, with much case. I do not find any errors of apprehension such as could justify this Court in reversing his decision, nor do I find any misconception of law. That being so, as was pointed out by their Lordships in a recent case in the Privy Council, Rivers Steam, Navigation Co. v. Hathor Steamship Co. 35 Ind. Cas. 193 : 20 C.W.N. 1022 : (1916) 1 M.W.N. 446 : 31 M.L.J. 159 : 4 L.W. 176 (P.C.), it would be wrong for this Court to interfere with the Judge's decision. For the above reasons, in my judgment, this appeal should be dismissed with costs.
56. The plaintiff is the daughter of Haji Kader Bux deceased and she claims according to the Muhammadan Law 7/88th part of his estate. To this she would be, it is not disputed, entitled if the defence is not made out. That defence is three-fold: (1) that the parties belong to a community called Erakis whose custom as to inheritance excludes the plaintiff, (2) that if this be not so, at any rate there was nothing for the plaintiff to inherit as her father had daring his lifetime made over all his estate by two Hebas to his sons, (3) lastly, that if there was no custom and no gift, the plaintiff for a sum of Rs. 4,500 surrendered all and any rights she might have possessed in her father's estate.
57. I will deal with these defenses in this order. A large body of evidence was adduced upon the question of custom and I was first somewhat impressed by it, supported in part as' it is by the Government publication on the Castes and Tribes of the North-Western Provinces and Oudh, but a closer analysis of the evidence and the pleadings and the fact elicited by my brother Mookerjee that the bulk of the evidence on custom was given with reference to the custom set up in the pleadings and not that in the issue, and that the defendant Ibrahim even now takes his stand on the pleadings, have satisfied me that the custom has not been made out in such a way as to justify a reversal of Mr. Justice Greaves' judgment that it has not been proved. I think there is no doubt that there is a community called Eraki, and I should say that it is possible on the evidence that they were Hindus converted to Mahomedanism, The point, however, is not of importance and I do not decide if, but I decide that if this community has a custom which is in derogation of Muhammadan Law, this has not been made out. It is very important in this connection to see what the; pleadings say. The written statement was as follows:
That this defendant denies the allegations contained in paragraph 3 of the plaint and states that even if the said Haji-Kader Bux had left an estate which he-did not, the plaintiff being a daughter would not have been entitled to 7/88th or any share in the said estate, inasmuch as the community, which is known as the Eraki community and to which the plaintiff and the defendants belong, though governed in all other respects by the Sunni school of Muhawmadan Law, is like the Khojas and Memons governed in matters of succession and inheritance by the Hindu Law, and the plaintiff is not entitled by the law and custom governing the parties to any share in the estate, if any, of the said Haji Kader Bux.
58. The learned Judge was quite right in deciding that the evidence does not establish the custom pleaded, that is to say, that the community is governed in matters of succession by Hindu Law, for the evidence rather seeks to establish that in no circumstances do females take by inheritance in this community. No doubt the issue as framed was 'Is there a custom among the Eraki community excluding females from inheritance', but the evidence on commission was taken upon the case as stated in the pleadings and before the framing of this issue and even at the trial Mahomed Ibrahim adhered to the case as set out in his written statement. Without looking at the matter technically, it must be admitted that the form in which the written statement puts the case goes against the existence of the custom. For if females are excluded under all circumstances, how came it that the written statement alleged that the succession was governed by Hindu Law according to which females do in some circumstances succeed? Mahomed Ibrahim qualifies this in his evidence by saying that he is not fully aware of the provisions of Hindu Law, but if in certain circumstances females inherit under that form of law, 'then the same thing applies to us under certain circumstances as well,' This is contrary to other evidence given on his behalf. This evidence in itself is not altogether the same in the mouths of the various witnesses. The Government publication edited by Mr. Crookes, to which I think we may refer, whilst it supports the exclusion of daughters, unless provision be made during their father's lifetime, shows that there are oases in which women do succeed, thus contradicting those witnesses who allege that the custom excludes females altogether. It is admitted that the alleged custom has not been recognised by any Court and the documents before us go against it. For the judgments to which the learned Judge refers show at least this, when read with the evidence, that the parties to these litigations were Erakis, and yet though the custom might have been pleaded in defence, it was not. This is not necessarily conclusive, but it is some evidence against the existence of the custom. I think also the pleadings in pending suits excluded by the learned Judge were also evidence on the same ground. Thus Mahomed Amin, though alleging that Mahomed Jan and Mahomed Husain knew of the alleged custom, yet says they must have forgotten to plead it in the written statement in their suit. It is also to be remembered that moat of the witnesses who speak to the alleged custom were personally interested to establish it. Nor must we overlook the alleged fact of the Hebas and the release. As regards the first alleged Heba, if it was, as the plaintiff alleges, benami, there would be some reason for its execution at the date alleged, whatever might be the custom. Next, if the Heba was a real transaction, it is possible, though I think on the facts not made out, that Kader Bux wished to immediately advance his eldest son to property which, under the alleged custom, he could only inherit at his father's death. But as regards the second Heba, no such explanation is possible. This was, it is said, executed only a month before his death. The reason assigned for it by Mahomed Ibrahim, namely, that his father intended to go on pilgrimage, is not supported by the other evidence, and I doubt its truth. If further he was ill, the possibility of his death may have been present to his mind. But why should the Heba be executed in favour of sons who according to the alleged custom inherited the property covered thereby a month or so later? Doubtless a parson may make a disposition in conformity with the laws of inheritance, but the fact that it is alleged that a Heba was executed, has some bearing on the question of the existence of a custom which rendered any Heba unnecessary. It is not irrelevant also to consider that it was further thought necessary to get a release from the plaintiff acknowledging a custom which, according to the evidence, is well known to every one. I conclude, therefore, that the alleged custom has not been proved.
59. I pass then to the question of the Hebas. The first is dated the 22nd April 1897 and is said to have been in favour of Kader Bux's eldest son Mahomed Ibrahim. The property said to have been covered by it is the Calcutta business. The plaintiff alleges that if there was any such transaction, it was benami and not real. There is no document. The alleged Heba was oral. Its existence depends on two bases: (1) some oral evidence of which two witnesses were alone heard by the learned Judge, and the rest on commission and (2) some entries in the books made at the time. Some exception has been taken to the mention of benami, and it has been said that the matter was not argued before the learned Judge or mentioned in the evidence. This is not so, for the learned Judge mentions the matter of benami, and it was put specifically in cross examination during the commission to Abdus Sattar. The plaintiff says that there were no Hebas in fact or law and that if there was a transaction in 1897 it was benami and not real and that there was in fact no Heba. It is true it is argued that the evidence is that some entries were made at the time but if so, these were a mere paper affair, not affecting the real ownership or possession.
60. Now it is to be observed that at the time of the first Heba Mahomed Ibrahim was then a minor of 15, 16 or 17 years of age. The father was then in good health and no reason is assigned why the father ten years before his death should assign to his son what was perhaps his chief property and business, even if there were any other properties at the time, which is not clear, The evidence is that the value of the property of the alleged second gift in 1907 was of somewhat equal value. There is nothing however which clearly shows what, if any thing, was left to Kader Bux after the alleged gift. Moreover the son was a minor. There was no stated urgency for making a minor son a partner. The only reason assigned for the alleged gift is that given by Mahatabo Bibee, who Bays that she enquired of her husband why he made that Heba--she said 'I enquired from him why did he make that Heba and he replied that Ibrahim was his son and I made him owner just like myself and made him seated on my gaddi (Jaisa ham waisa woh).' This is no explanation at all. Others can give no explanation. If Kader Bux wanted him to take up his place in the business, there was no need to retire. He could have kept him with him. The defendant is so anxious to disassociate Kader Bux from the business after the date of the Heba, that it is denied that he was ever afterwards even consulted on any occasion: a manifestly improbable statement. There was no apparent reason for his retiring from this business and making it over, to a minor. Why, it is asked, was there any anxiety to put him in his place and at any rate a boy of 16 years old or less. Further such a gift would exclude any possible issue, and it is noteworthy that the second son was born on the 30th December 1397 and was, at the time of the alleged Heba, en ventre sa mere. This was said to be the less necessary that according to the alleged custom the sons would have taken without any Heba.
61. According to Mahomed Amin the defendant Ibrahim was a partner in the firm before the date of the first Heba. This contradicts other evidence that he was not a partner, but employed in the firm. At this time there were, it is said, three sets of accounts, account No. 1 which was the partnership account in the name of Kader Bux Mahomed Ibrahim, account No. 2 in the name of the first in which personal drawings are said to be debited, account No. 3 in the name of the latter, being, it is said, deposits made by Ibrahim of money given him by his father. It is suggested that the account that stood in the name of Ibrahim before the alleged first Heba was really the account of the father. These sums are supposed to represent gifts of large amounts extending from Rs. 2,000 to 5,000 by the father to the son. We find from Exhibit 5d that the account standing to the credit of this young boy in 1897 was Rs. 14,386-1-0. This to me is a very improbable story. What is more likely is that the father opened an interest account of monies of his own in the son's name. The source of the money being the father, the presumption is that the account was his. This so-called private account of Ibrahim is said to have been started when he was 14 or 15. I do not believe that the father gave this young boy these large sums amounting to Rs. 2,000 at a time. It will be observed that Mahomed Ibrahim's name was used before he was a partner. After the 22nd April 1897 it is said that the first account was changed into the name of Mahomed Ibrahim alone and the other accounts continued as before. But Ibrahim says that the name of the second account indicated nothing for that though the account stood in the name of Kader Bux, he, Ibrahim, was the malik of that account. So that according to the defendant's case both before and after the Heba names were used in the accounts which did not indicate ownership.
62. That there was some- change in the account in the year 1897 there is, I think, no doubt. The defendant's evidence is on this point supported by a document on which the plaintiff relies (Exhibit H, the Heba of Hazir Bux the brother of Kader Bux), in which it is stated that credit and debit entries in respect of capital, profit and loss were made in the name of Mahomed Ibrahim. It may be admitted that this change of entry was done with some purpose. But whether that purpose was a benami or a real gift, cannot be inferred from the transfer entries alone. For it is admitted that whether the transaction was of the one nature or the other,, there would have been the change in the entries which were made. That a transfer might take place in the name of Ibrahim when there was admittedly no gift is shown by the Motihari account, where the whole amount is transferred to the name of Mahomed Ibrahim though there had been no gift of the Motihari business. That there was a gift really depends on the credit given to the oral evidence, for there is not, in my opinion, any document tendered by the defendant which is inconsistent with the benami. I am not unmindful of Eixhibit 3, which is a deed of dissolution of partnership dated 7th February 1907 between Abdul Gunny and others and Mahomed Siddik. This document was tendered by the defendants but was excluded by the learned Judge It is in my opinion evidence and that document states that the share of Mahomed Ibrahim was seven annas and three pies and the name of Kader Bux does not occur. This however, is not inconsistent with the case that there was no real Heba : for, of course. whenever a benami transaction is effected, everything is done which is necessary to give it the appearance of reality. If Mahomed Ibrahim's name stood for his father in 1897, it would stand for him in the deed of dissolution in 1907 There is no document, in my opinion, which supports the defendant's case It is admitted that so far as the public were concerned, the old name of the firm was retained notwithstanding the change of name in the books. No notice was given to the public that Kader Bux had ceased to be a partner, though little stress can be laid on this circumstance in the case of a firm of this kind. The gift is said to be oral. There is no mention in the transfer entry of the transfer being made on account of a gift. There is no con-temporary document which supports the defendent's case. It does not appear that there were any drawings on the partnership account, but as this occurred also as regards, Hazir Bux's account all that can be said is that as this account was not drawn on, it does not help the defendant No reason is assigned why the Heba was not made in writing, as for instance the Heba of Hazir Bux was According, however, to Ibrahim his father Kader Bux was anxious about the matter before his death and wished to state in writing that this and the other Heba had been made. He is unable to explain if everything was in order why his father should wish to do this. There are, however, three documents besides the alleged release which directly put in doubt both this and the second Heba. On the 13th October 1904, two persons named Abdul Bari and Abdul Majid made a conveyance of the premises No, 47, Taltolla Lane (Exhibit I). This document purports to be between these persons of the first part and Hazir Bux and Kader Bux the purchasers of the other part. It recites that the vendors were indebted to the purchasers in respect of Rs. 7,000 and by this conveyance conveyed the property to them for that sum. It is quite clear that the conveyance is to the two individual persons named and not to the firm as alleged by the defendant. The suggestion is that the name of the firm was inserted by mistake. This was after the date of the alleged Heba. Now the defendant's case is that this purchase was made with moneys of the firm of which Ibrahim was, and Kader Bux was not, a partner. Whether the debt was to the whole firm or to the two partners mentioned in the conveyance is disputed. If the money was that of the firm, then the conveyance would not have been to Kader Bux who, according to the defendant's case, had long ceased to be a member of the firm. I do not agree with the learned Judge that the conveyance was to the firm and the alternative suggestion that if it was in fact conveyed to these two individuals they held it in trust for the partnership, is not founded on the evidence which suggests that the conveyance, notwithstanding its terms was to the firm. Further the Heba (Exhibit H) made by Hazir Bux in November 1907 refers to the house in 47, Taltolla Lane, as belonging to him and his deceased brother Kader Bux, a statement which the former's son, a supporter of Ibrahim, attributes also to mistake.
63. Further in the schedule of the alleged release dated 9th January 1903, a document drawn up in consultation with several Pleaders on behalf of the defendant Ibrahim and on which he relies to defeat the plaintiff's claim, it is reaffirmed that the house at 47, Taltolla Lane, belonged as to half (not to the firm) but to Haji Kader Bux, the ancestor deceased. It further contains the statement that this property is 'held and possessed as proprietors by Mahomed Ibrahim, Mahomed Sulaiman and Abdus Samad, sons of the Haji Saheb aforesaid.' But haw is this in the defendant's case? If it was bought with the money of a firm of which Kader Bux had ceased to be a partner, the latter could not have a half or other share in it. Nextly if the property as alleged belonged to the firm and Muhammad Ibrahim had alone a share therein to the exclusion of his brothers, how is it that in the schedule Ibrahim's sharers are declared to be co-sharers in it? I am not overlooking the fact that the release itself speaks of Ibrahim having been made proprietor of the Calcutta shop.
64. Nextly, there is the Hebanama (Exhibit H) a registered document by Kader Bux's brother Hazir Bux in favour of his sons, dated in November 1S07, after the death of Kader Bus--as regards this document as well as Exhibit 3, the learned Judge in his judgment says they are not evidence though they were admitted and marked as exhibits. 1 have already expressed my opinion that the defendant's evidence (Exhibit 3) is evidence, and in my opinion the plaintiff's document (Exhibit H) is so. It was asserted in the evidence that Hazir Bux as partner was aware of and had assented to the alleged Heba, an allegation this document refutes, Now this document contains a recital of great importance in this case. This document runs as follows: 'I am Sheikh Hazir Bux son of Sheikh Rabat Ali deceased, sect Shaikh, occupation Zemindari, money-lending and trade, inhabitant of Mouza Kotwari, Parganah Lakhneswar, District Balia.
65. 'Whereas I and Haji Kader Bux, de-ceased, were full brothers, I and the said deceased brother jointly started hide and money-lending business at different places wherein our shares were half and half, which are by the grace of God going on up to this time. So that (we) established a firm for Hide Commission Agency business in the town of Calcutta, wherein the business of Hide Commission Agency is carried on and which is at present situate at No. 3, Damzen's Lane, Chinapara, in the town of Calcutta, and the name of the firm is Haji Kader Bux Hazir Bux. In the capital thereof, out of the sixteen annas of the whole capital a share of seven and a-half annas belongs to me and a share of seven and-a-half annas to Haji Kader Bus (my) deceased brother aforesaid, and a share of half an anna to Shaikh Muhammad Amin of Kotwari and a share of half an anna to Shaikl Abdul Latif of Kotwari. It is a period of about ten or twelve years since my deceased brother Shaikh Kader Bux owing to its being considered advisable (literally by reason of some advisability) substituted the name of his son Shaikh Muhammad Ibrahim in the place of his own name in the papers of the said shop, such as books, accounts, etc, and having also declared his son Shaikh Muhammad Ibrahim to be the owner of his share of capital, got the credit and debit entries in respect of capital, profit, loss, etc, made in the name of Shaikh Muhammad Ibrahim aforesaid in the papers of the shop, so that the credit and debit entries in respect of capital and profit, loss, etc, of the Com-mission Agency firm in Calcutta are up to this time made in the name of Shaikh Muhammad Ibrahim aforesaid in the papers of the shop but the name of the firm continues to be Haji Kader Bux Hazir Bux as before.' Aftersome further matter not relevant it says: There is also a house in Calcutta purchased by a bill of sale which belongs to me and my deceased brother Haji Kader Bux and is situate at No. 47, Taltolla Lane in the town of Calcutta. I and my deceased brother Haji Kader Bux are half and half owners and co-sharers thereof. The partners of the Calcutta firm have no connection with the said house.'--The words by reason of some advisability' have been at the request of the parties translated by Mr. Justice Imam as 'for some politic reasons.' To my mind the first passage very clearly indicates that there was no real Heba. It states that he was a sharer with his brother up to this time,' which means all along, i.e., with Kader Bux and his representatives, for Kader Bux was then dead. This could not be so, if there was the first Heba, for he would have shared with Ibrahim not with Kader Bux, in that case. It very carefully avoids all mention of a Heba and states the fact that 'for some politic reasons' he (Kader) substituted the name of his son in the books of the firm which appears to be a fact, and declared his son to be owner and that the entries are in the name of Ibrahim, though the name of the firm was the same as before. If there was a gift, why not mention it? What is mentioned is a declaration for 'some politic reasons' and transfer entries; and the share of Kader Bux, who is supposed to have transferred it to his son, is stated 'to be going on up to this time.' This evidence very clearly in my opinion negatives the Heba. It if unexplained how a person like Hazir Bux, who was in a position to know the real facts and, so far as it appears, had no interest to misrepresent them, should thus either impugn or ignore the first Heba. The explanation that all these statements were due to his illness seems to be absurd. The statement is obviously a carefully considered one. 1 have already referred to the statement in this document regarding the Taltolla house, which also negatives the Heba.
66. Then we find that an application was made on 9th June 1908 by Muhammad Ibrahim for a certificate of guardianship of the person and property of his minor brothers, and in this document no mention is made of either of the first or second Heba and in the schedule of properties, 2/3rd of which is declared to belong to the minors, is included, both the house No. 47, Taltolla Lane, and the outstandings of the Calcutta business in which, if the first Heba were a reality, the minors had no interest whatever. The explanation given as regards this is that his servant Budhraj wrote saying that the business was suffering for want of a certificate. An application was sent to Ibrahim and he says he signed it without looking at it--thinking it was the usual thing. Now so far as regards an absence of mention of the second Heba, it does seem unlikely that Ibrahim would knowingly have done anything which would negative a Heba, which had already been set up in the alleged release by the daughter of the deceased in the January previous. This, however, only applies to the absence of mention of the second Heba for the interest of the brothers is admitted in the release as in the application for certificate. It is quite possible that Ibrahim might have been satisfied with the document as substantially affirming the rights of the parties as set out in the release without reference to the title by which they were acquired. But assuming that he did not know at all what was in the document, bow is it that this document is in the form which it is, seeing that it was drawn up by Budhraj who had been two years in service and is admitted to have been aware of both the Hebas? Assuming again that Ibrahim was not aware of what was in the document, how did it come to be drawn up in the way in which it is drawn up, which, whilst being in conformity with the release, is to that extent, as explained later, not in conformity with the case set up as regards the first Heba?
67. I now, therefore, pass to the alleged release which was drawn up by Pleaders under the instructions of the defendant Ibrahim. In that document the widows and daughters of the deceased are alleged to have said as follows:
We declare that the late Haji Kader Bus, the predecessor of the declarants, was the proprietor of the moveable and immoveable properties detailed below and his intention was to give away the whole of his properties to his three sons, Muhammad Ibrahim, Muhammad Solaiman and Abdus Hamad, and with this object he made his eldest son Muhammad Ibrahim the proprietor of the shop in Calcutta, and prior to his demise, the late Haji Saheb, in the presence of us the declarants and of Muhammad Ibrahim, Muhammad Solaiman and Abdus Samad and other relatives and kinsmen of his, made a gift of and gave away all his moveable and immoveable properties situate in District Balia, Calcutta and Muzaffarpore to his sons aforesaid, made (them) proprietors and put (them) in possession of the same and in accordance with the oral gift and grant aforesaid all the three sons of the Haji Saheb aforesaid are holding and possessing all the properties as proprietors and it is their names which have been registered in the Sarkari papers* * * our brothers aforesaid are in every way proprietors of all the same.
Clause the third: We the declarants do in every way confirm and admit the oral gift and grant which has been made by our husband and (our) father in favour of our brothers, and (our) sons Mahomed Ibrahim, Mahomed Solaiman and Abdus Samad, and Mahomed Solaiman, Mahomed Ibrahim and Abdus Samad have in every manner become proprietors (in place of) Haji Kader Bux deceased. Therefore, we do execute this declaration of relinquishment so that it may come to use in time and remain as a document.
68. After giving the names of the declarants and the amount of consideration money, it sets out the schedule as follows:
Schedule of the estate and property of Haji Kader Bux, the ancestor deceased, which in accordance with the oral gift and grant aforesaid are held and possessed as proprietors by Mahomed Ibrahim, Mahomed Solaiman and Abdus Samad, sons of the Haji Saheb aforesaid.
Schedule of Trading and Banking firms (1) A firm of Arath (Commission Agency) for hide, the name of which firm is Haji Kader Bux Hazir Bux situate in the town of Calcutta, Chinapara, Damzens Lane, No. 3, together with the funds and capital, the trading and Arath business and articles of merchandise and household furniture, etc., lying in the firm together with all the things and rights, etc, appertaining thereto, wherein out of the sixteen annas the right and share to the extent of seven annas and half belonged to Haji Kader Bux the ancestor deceased and which are held and possessed by Mahomed Ibrahim, Mahomed Solaiman and Abdus Samad, sons of the Haji Saheb aforesaid, as proprietors.
69. Then omitting some further particulars we have: '(1) A brick built house situate in the town of Calcutta, Taltolla Lane No. 47, which is let out on hire, wherein right and share to the extent of half belong to Haji Kader Bux, the ancestor deceased, and which are held and possessed as proprietors by Mahomed Ibrahim, Mahomed Solaiman and Abdus Samad, sons of the Haji Saheb aforesaid.'
70. This document is in my opinion very strong evidence against the first Heba and as it is a document prepared on behalf of the defendant Ibrahim, it is of exceptional importance. Before dealing with this document it is necessary to recall that the case of the latter now is that there was in 1897 a valid Heba legally effective which transferred to him the Calcutta business, which from that date formed no part of the estate of the deceased. This document impugns each of these points. It was drawn up at the instance of Ibrahim in consultation with several lawyers who were well aware what a Heba or gift is and its effect. Now it starts by saying that Kader Bux made Mahomed Ibrahim 'the proprietor' of the Calcutta shop just as the Heba of Hazir Bux says that Kader Bux for 'some politic reasons' declared his son to be its 'owner.' Something may have taken place in 1897. But was the transaction meant to be and was it in fact a valid Heba? If it was, it is curious that the lawyers did not use the word gift or Heba, the more particularly that they do so immediately afterwards in connection with the second Heba--why not say that Kader Bux gave his son the Calcutta business, if such be the fact? If the matter rested there, this criticism might be said to be refining on words. It does not, however, rest there, for we find throughout only one gift (not two) mentioned, under which all Kader Bux's properties (not excluding the Calcutta business) were given to the three sons (and not to Ibrahim alone). How could Kader Bux have given all his properties to his three sons if the most' valuable property of all, the Calcutta business, had already been given to Mahomed Ibrahim? He could only do so if there were no legal valid first Heba. It is possible that there was no valid first Heba, but that for some politic reasons' Ibrahim was declared proprietor or owner of the property now alleged to be covered by it and that the release refers to this fact: but that it was not a valid gift and that, therefore, objection was taken on behalf of 'the minors to its being so described in the release or given effect to as such. This is, it is true, only a matter of speculation put forward as a possible explanation of how in this document two transactions are referred to, only one of which is called a gift. But the document itself and its schedule leaves me in no doubt as to its meaning. For after the body of the document had stated that all the properties had been given to the three sons, the schedule clinches the matter by showing what those properties were. It in the most express terms affirms that half of the Calcutta business belonged to Kader Bux (not to Ibrahim as now alleged), though according to the present case Ibrahim had been holding the property from ten years before this document and his father had nothing to do with it, it, secondly, affirms that this business was the property of the three sons, and thirdly, that it was their property by virtue of the oral gift, that is, the one gift referred to in the body of the document under which all three sons took;
71. It further goes on to make a similar affirmation as regards the Taltolla house, half of which is said to have belonged to Kader Bux though this is now said not to be so land which, if it were purchased out of the monies of the Calcutta business as alleged by the defendant Ibrahim, would in the event of these being a valid first gift have belonged to him alone. Mr. Jackson has not given any explanation of this except that this only occurs in the schedule. But this is no answer, The schedule merely affirms the body of the document for we must read the body and schedule consistently if we can; and moreover the schedule is no trifling thing and the whole document was drafted by lawyers on the instruction of Ibrahim. In my opinion this release disposes of the case as to the first Heba. It merely alleges that, as is possible, there was some transaction in 1897 which did not amount to a valid gift but that what was the subject of that transaction was subsequently transferred with other properties to all the three sons. It seems to me impossible that this document could have been framed as it is, had there been a valid Heba in 1897. In that case all that it was necessary to say was that the Calcutta business had been given to Mahomed Ibrahim and the rest of the properties to him and his brothers. As the matter stands if the second Heba is an effective document, then all the sons of Kader Bux are interested in the Calcutta business.
72. I have no doubt that there was no valid first Heba in 1897. I may here point out that of the evidence by which the two Hebas are sought to be supported all except two witnesses gave their evidence on commission, and we are, therefore, in no worse position than the learned Judge who heard the trial. Of these witnesses the Commissioner, who was entitled by law to do so, noted his observations as to the demeanour of some of the witnesses, Of Abdus Sattar, on whom great reliance is placed and whose evidence I distrust--the Commissioner says he was evasive. Of Mahatabo Bibi, Hakima Bibi, and Hadi Hasan he records the observation that they appeared to him to have been tutored. If they were tutored they must have been tutored by or on behalf of Mahomed Ibrahim, for he is the person most interested and for whose advantage only it would be done. That he is not altogether scrupulous is shown by Exhibit F, in which he shows himself a party to bribery.
73. A suggestion was put forward that the Commissioner had dishonestly made these adverse comments because of a dispute as to his fee. This charge against the Commissioner who is a Munsif is based on the fact that the observation on the demeanour of one witness was made sometime after he had given his evidence and after the date on which the dispute is supposed to have arisen. But the other observations were made before that date. The allegation is without substance and evidence only of the length to which the defence is prepared to go in support of; the case which it sets up. It is then said that the Commissioner was not in a position to observe the witnesses because they were Pardanashin. The observation cannot apply to the two men witnesses and it is feasible, as I have often done, to judge of the character of a witness's testimony without seeing her face by the manner of and delay and so forth in answering questions, the character of the answers and so forth.
74. The learned Judge says that Ibrahim and Siddik appeared to him to be truthful and reliable witnesses and that he preferred them to the evidence of Abdul Hamid, the plaintiff's husband. That may well be so. for the latter, in my opinion, is an unreliable and unscrupulous person and the last to have represented his wife's interests in the matter of the release. I am not prepared myself to place such trust on these two witnesses or to put aside all the probabilities and inferences arising from the documentary evidence because they do not fit in with Mahomed Ibrahim's story. That story must, in my opinion, fit in with them or it is not entitled to acceptance. The learned Judge does not in his judgment deal with a large number of the considerations which were dealt with and had they been present to his mind, he might not improbably have taken a different view of the value of Ibrahim's evidence which is directly contradicted by the documents. it is further to be remembered that he is a very interested party who is claiming the bulk of the property for himself, for the value of the Calcutta business is said by him to be about 3 lakhs.
75. A question was argued as to whether if the' Heba was made, legal effect was given to it by transfer of possession. If the evidence is accepted and it is held that there was a real Heba, then that same evidence would seem to establish that possession was given. But as I am not satisfied that there was a Heba of 1897, I need not further discuss this matter. I will only add that the contention that if there was any transaction in 1897, it was a benami and not a Heba, was raised in the lower Court as appears both from the judgment and evidence. The submission that this is not so is without foundation.
76. The question of the second Heba is one of greater difficulty. For there are not against it the same improbabilities. It is said to have been made shortly before Kader Bux's death in favour of all his three sons, and it there were ground for impugning the alleged first Heba, that might in itself be a reason for executing a second. There is, however, no mention of the second Heba in the Heba, of Hazir Bux, who, as having an interest in the other properties, might reasonably have been expected to refer, to it, as he did to the transfer of entries made at the date of the alleged first Heba. It is hot mentioned in the application for a certificate of guardianship. Though there were Zemin' daries, no evidence is adduced to show by revenue records that there was such a transfer, and the effect given to it. It is true that there is a reference to registration in the Sarkari papers in the release, and in so far as this release is brought home to the plaintiff this is some evidence. But we have not these papers and do not know their contents. There are different provisions for transfers inter vivos, and by inheritance. If these papers do not show a transfer inter vivos, they would be evidence against the existence of the second Heba. The presumption on this paint is against the defendant Ibrahim who has not produced these papers. For all that we know they may show a mutation effected in accordance with inheritance and the alleged custom excluding females. Then as I have above pointed out, the release does refer to the second Heba but speaks only of one gift, and if the facts are correctly recorded there, the second gift operated over property other than that which is said to be its subject in the evidence. For if the first Heba be not established, the defendants could not claim as against the plaintiff in this suit the Calcutta business, for that would be to give them relief upon a new case. The present case made on the evidence is that the Calcutta business is not covered by the second Heba. The evidence and the release have suggested the argument which is not without foundation that Mahomed Ibrahim, who admitted the title of his brothers to the Calcutta business in 1908, is now trying to take it from them. There is also to be considered the fact that by this Heba, which would seem to be unnecessary if, there was the custom alleged (for the story of Kader going on pilgrimage is spoken to by Ibrahim alone, who at first said there was no necessity for it) Kader Bux is said to have made over his property to his sons without making any provision whatever for the female members of the family.
77. This Heba again is unsupported by any document and has the application for guardianship against it, for whatever that circumstance may be worth. It might have been supported by revenue papers showing that the properties were claimed by transfer, but such are not produced. There is nothing but the word of some of the witnesses to it, some of whom the Commissioner thought gave their evidence in tutored fashion. Moreover in the absence of corroborative evidence, the view one takes as to the oral evidence given in support of the first Heba must necessarily re-act upon the evidence of the witnesses to the second Heba where these are the same. I hold, therefore, that the existence of the second Heba has not been established. I need not then go into the question whether if it took place in fact, it was valid in law, at any great length. It has been said to be based on the doctrine of musha. Amongst other authorities a passage is cited from Fatawa Alamgiri Vol. IV, p. 549, Ed. Cal., in which Al Hakim states: A man makes a gift of a house to two of his sons one of whom is adult and the other is a minor and the adult son takes possession (of it). The gift is absolutely void and this is the correct view. For the gift in favour of the minor is complete at the very moment of the declaration of the gift because the seisin or possession of the father is equivalent to his (minor's) seisin or possession (qabz): Whereas the gift in favour of the adult son stands in need of acceptance. Thus the gift in favour of the minor precedes (that in favour of the adult) and thus confusion (shuyn) is occasioned. And the device is that he (father) should deliver possession of the house to the adult son and then make a gift of it to both of them. Thus it is laid down in the Wajiz of Al Kardari.' There is no evidence of such a device being resorted to here and one may reasonably question whether Kader Bux was aware of such technicalities. I am not prepared to say that the fact, if it be a fact (which I cannot hold), that Kader asked Ibrahim to accept the gift for himself and his brothers, whilst it would interpose some one who does not appear to be the legal guardian between the alleged donor and the infant donees, whose share is not expressly stated, brought the case strictly within the device according to which Kader should first have transferred possession to Ibrahim and then made a joint gift to Ibrahim and his minor brothers. It is, however, unnecessary for me to give a formal decision on this point. I should have been sorry to decide the case upon so technical a ground and am relieved from doing so by my finding that the existence of the second Heba has not been made out.
78. I now pass to the concluding point, the alleged release of her rights by the plaintiff.
79. Abdul Latif, when asked what was the necessity for the execution of the deed of release by the ladies, answered 'to confirm the two verbal Hebas by Kader Bux.' I have already pointed out that it was not a confirmation of the alleged first Heba.
80. If the Hebas were real, it is noteworthy that it was thought necessary according to the evidence to mention and thus confirm the first at the date of the second and to confirm the last by a release, the deceased Kader Bux having, it is said, meanwhile expressed a wish to confirm them in writing, which was not done. Shortly after the death of Kader Bux on 28th August 1907 steps were taken to secure Ibrahim from any claim by the ladies and it was he who suggested that they should give him a release of their claims, if any. The idea of the release originated, he says, with him. These ladies are illiterate Pardanashin, who from the evidence I should say are entirely in the hands of the male members of the family. Indeed as appears from the evidence as to the alleged custom, women are not of much account in this community for fear, according to one of the witnesses, that they might be spoiled. Now it is not suggested that the plaintiff had any direct knowledge of the alleged first Heba, at the time it was made. If she was told anything it does not seem that she was told that there was a Heba in 1897 giving the Calcutta business solely, to Ibrahim and that his brothers had no share in it, for we do not find any such statement in the document which she is said to have executed and which was drawn up by Ibrahim's lawyers. Ibrahim gives some vague evidence to the effect that he told his mother 'that his father wanted to execute a document like that' and he wanted a document in which his father's intention should be stated and that if the ladies desired payment for this, he would do so. The second Heba is alleged to have been made in a loud voice in the presence of many persons including the ladies. According to the evidence the second gift was of property other than that disposed of by the first, a fact which is as I have shown, contrary to what is stated in the release and its schedules. We must take it then either that the evidence is not true or that the document which the plaintiff is said to have signed is an incorrect statement of the facts. The release also states that under the alleged custom the females get nothing. This the plaintiff denies and it is a different custom from that pleaded We thus find, that this release affirms facts which I find on the evidence not proved, namely, the two Hebas and the custom and without doubt (even on the defendants' own showing) contains statements not consistent with the evidence and case now made.
81. Ibrahim got this document prepared by his lawyers. Maulvi Abul Barkut, the defendant's witness, says that the draft was taken to him by Haji Ahmed and Abdul Hamid 'who were in a harry' and they were sent over to a Pleader. The document received a great deal of legal attention in the interest of Ibrahim, but it never occurred to him that the ladies might properly require legal advice as to their rights. He cannot say whether they were aware of their rights under the general Muhammadan Law, nor does it appear that they knew what the law requires in the case of custom in derogation of the law and what is necessary to the legal perfection of a Heba. There were matters as to which legal assistance was clearly necessary. The facts again as regards the alleged first Heba were not in their direct knowledge. The document is then said to have been explained no less than five times to the different ladies by Mahomed Amin, Hadi Hossain and the Registrar and, it is said, executed for the' plaintiff by her husband, who on his own evidence was a person willing for a consideration to cheat her. This same person Hamid is also said to have had the handling of the money Rs. 4,500, which is said to have gone into the hands of the plaintiff as the consideration for the release. It is admitted that the plaintiff had no legal advice though this is, in my opinion, a case where it was necessary that she should be rightly advised of her rights before signing them away. I am not satisfied that she had any proper advice or protection. Certainly her husband was not the sort of person from whom it might have been expected, and the other ladies of the family were no better situated than herself. Learned Counsel admits that he cannot support altogether the case made by his clients that the release was never read to her or that it was represented to be a Muktearnamah. That particular case must be held to fail. How little is the value to be attached to the so-called explanation of the document of release is shown by the facts mentioned and in particular by the following. An argument as to its meaning, which it may be argued is capable of various possible interpretations, has occupied us for several days. I do not refer to some alleged slips in translation which do not appear to me to affect the case, even if established. 'If the release was explained to the plaintiff as if it acknowledged two valid Hebas, was the alleged mistake in the schedule which is contrary to such acknowledgment brought to her notice? If the release was explained as a document which recited only one valid legal disposition of the property, which is the interpretation which makes the body of the document and its schedules consistent, then the document was explained in a sense contrary to that in which the respondent has now used it. The reading of documents to illiterate Pardanashins is sometimes a meaningless formality of which the present case is a conspicuous illustration. Whatever be the deficiencies in the plaintiff's case on this point, it will, however, still remain on the defendant, who sets up the release, to show that it is an operative bar to the plaintiff getting that share of the inheritance to which she is entitled under Muhammadan Law. If she is entitled to share in the Calcutta business, she has not had anything like her rights, even assuming she received the whole or any portion of the Rs. 4,500, of which I have considerable doubt. It is to be noted that it is not possible to trace the sum of Rs. 13,500, for it is said to have been paid in rupees. It is usual to make payment of consideration in notes capable of identification. It is said that rupees were given because the ladies specially asked for it, Rs. 13,500 was brought, it is said, in 9 bags and counted out and, according to one witness, all this hard coin was paid into the outstretched hands of the ladies behind the Pardah. The story has a physiognomy common to this class of cases, but is not on that account the more convincing. The Registrar's note is evidence of payment, and it may be, and probably is the case, that money was produced and counted out in his presence, but whether it or the whole of it remained with the ladies, is another matter. It is significant in this connection to refer to the evidence of Hakima Bibee, who appears to have had Rs. 1,200 or so only. She says 'the sum of Rs. 2,800 has been spent up in our hide business at home.' When this witness was asked whether her male relatives--who were supposed to have been giving her Rs. 4,500--nevertheless looked to her for pecuniary assistance, she says she was told to give them the money to be used for the business--so I gave.' I have no confidence that Rs. 4,500 found its way into the hands of the plaintiff even though it may have been produced before the Registrar. As, however, the onus on this point is on the plaintiff and her Counsel did not press her statement on this matter for our acceptance, I am obliged to hold that she has not established that she did not receive the money. Her rights, however, are in excess of this, if there be no custom against inheritance and if her father did not divest himself of everything he possessed in favour of his sons and left his daughters and other female defendants with nothing. On my finding as to the alleged custom and the Hebas, the release was executed in misconception of the true facts and of the plaintiff's rights and is in consequence not binding upon her.
82. On these findings it is not necessary to enquire into the question of jurisdiction, but even if the first Heba had been established, the Court would, in ray opinion, have jurisdiction. The plaintiff's cause of action is the release which purported to operate over property within and without Calcutta. The mere fact that the defendant might make a case as regards the Calcutta properties would not deprive the Court of the right to deal with the rest of the properties covered by the same document. The result, therefore, is that, in my opinion, the suit should, subject to the remarks about to be made, be decreed with costs in terms of the prayers of the plaint other than Clauses (g) and (h). Any relief, the subject of these clauses, may, however, be made the subject of independent application. On the account the plaintiff will have to be debited with the sum of Rs. 4,500 which, I have found, she must on the evidence be taken to have already had. As I have no doubt that the judgment is erroneous I would, therefore, reverse the decree under appeal and decree the suit and appeal with costs in both Courts.
83. The litigation, which has culminated in this appeal, was commenced by the appellant on the 3rd January 1911, for declaration of her title to a 7/88th share of the estate left by her father, Haji Kader Buksh, who died on the 28th August 1907 and left two widows, three sons and five daughters. Kader Buksh had a brother, Hazir Buksh, who died on the 5th November 1907 and left two sons. The relationship of the parties to this suit will be apparent from the annexed genealogical table. The case for the plaintiff is that her father left an estate of considerable value, which has been unlawfully seized by her brother Ibrahim, the first defendant. She further alleges that on the 9th January 1.S08 she was induced to execute a registered instrument in Urdu language and character on the representation that it was a general power-of attorney, but which she has subsequently ascertained was a release of her rights in the estate of her deceased father in favour of her three brothers. She consequently prays that the deed of release may be declared void and inoperative, that she may be held entitled to the share mentioned in the estate left by her father, and that she may be awarded possession upon partition as also incidental reliefs. The first defendant, who contested the claim of the plaintiff, filed his written statement on the 14 June 1912, which disclosed a threefold defence, namely, first, that the parties belonged to a community called Erakis, which, though governed in all other respects by the Sunni School of Muhammadan Law, is, like the Khojas and Memons, governed in matters of succession and inheritance by the Hindu Law, so that the plaintiff is not entitled by the custom prevalent in the community to any share of the estate of Haji Kader Baksh; secondly, that Haji Kader Baksh did not, at the time of his death, leave any estate, as whatever properties he had were validly transferred by him by way of two gifts on the 22nd April 1897 and 19th July 1907; and thirdly, that if the alleged custom and the gifts are not established, the plaintiff has' relinquished her right in the estate of her father for a consideration of Rs. 4,500 and executed a release on the 9th January 1908. Mr. Justice Greaves found upon the first question against the defendant and upon the second and third questions against the plaintiff. In this view, he dismissed the suit with costs. On the present appeal, the three questions stated have been elaborately argued by Counsel on both sides, and I shall examine them in the order I have mentioned.
84. As regards the question of custom, reliance has been placed by Counsel for the appellant upon a statement in the work on Castes and Tribes of the North-Western Provinces and Oudh by Mr. Crookes, prepared at the instance and published by the authority of the Government of that Province. Reference, I think, may legitimately be made to the work of Mr. Crookes as an authoritative statement of customs prevalent among the Eraki sect of Mahommedans, but it is of no real assistance to the plaintiff. The issues were not framed till the 8th April 1915, and the fifth issue was expressed in the following terms:
Is there a custom amongst the Eraki community, to which the parties to this suit belong, excluding females from inheritance.
85. It will be observed that the issue framed is not in conformity with the custom alleged in the third paragraph of the written statement; the custom set out there was, not the absolute exclusion of females from inheritance, but a limited exclusion as prevails amongst the Khojas and Memons. [Khojas and Memons case, Hirbae v. Sonabae and Rahimatbae v. Hadji Jussop Perry's Oriental Cases 110; 4 Ind. Dec. (O.S.) 100]. Before this issue was framed, however, a large number of witnesses had already been examined on commission on behalf of the plaintiff from the 14th September 1913 to the 6th November 1913. These witnesses, as may be anticipated, were examined and cross-examined with reference to the custom pleaded in the written statement, and not with reference to the custom subsequently set up in the issue. The evidence taken in Court later on, it may be generally stated, seeks to establish that in no circumstances do females take by inheritance in the Eraki community, while the evidence on commission seeks to support the case that females are excluded only to a limited extent as amongst the Khojas and Memons. The evidence of Muhammad Ibrahim on this part of the case is not consistent with the evidence of his witnesses, who, as I have already stated, are not agreed amongst themselves as to whether the exclusion is absolute or qualified. The statement in the work of Mr. Crookes tends to show that in certain contingencies, women do take by inheritance, and consequently discredits the witnesses who support a case of complete exclusion. The custom alleged has not met with acceptance in any Court of Justice, and such documents as we have do not support the defendant. It is also plain that the custom does not possess two at least of the essential attributes for its validity, viz., uniformity and certainty : Hurpershad v. Sheo Dyal 3 I.A. 259 at p. 285 : 26 W.R. 55 : 3 Sar. P.C.J. 611 : Bald. 25 : 3 Suth. P.C. J. 304 : Rafique & Jackson's P.C. No. 41 (P.C.), Rajah Vurmah Valid v. Ravi Vurmah Kunhi Kutty 4 I.A. 73 : 1 M. 235 : 1 Ind. Jur. 134 : 3 Sar, P.C.J. 637 : 3 Suth. P.C.J. 382 : 1 Ind. Dec (N.S.) 156 and Mahamaya Debi v. Haridai Haldar 27 Ind. Cas. 400 : 42 C. 455 at p. 472 : 20 C.L. 183 : 19 C.W.N. 208. The fact that the custom was not pleaded in litigations between members of the community where it might have been pleaded, is, I think, also relevant evidence, and the question of its relevancy is not affected by the circumstance that some of these suits were still pending at the time of the trial in the Court below. I do not think reliance can be implicitly placed upon the oral evidence adduced by Muhammad Ibrahim in support of the custom, because most of the witnesses who came forward to testify to the custom had excluded their female relations and were deeply interested to establish that the exclusion was justifiable. Some weight must also be attached to the circumstance that Kader Buksh deemed it necessary to make gifts in favour of his sons and that the first defendant thought it prudent to take a release from his sister; neither the gifts nor the release would have been necessary if the custom of exclusion of female heirs, either entirely or to a limited extent, had been as wall known to members of the community as we are now asked to believe. I feel no doubt, on the first question, that the first defendant has failed to establish the custom of exclusion of female heirs, whether we look to the qualified custom pleaded in the written statement or the more comprehensive custom raised in the issue.
86. As regards the second question, it is alleged by the first defendant that his father had divested himself of all that he possessed by means of two oral gifts, the first made in his favour on the 22nd April 1897 in respect of what has been described- in this proceeding as the Calcutta Hide Business, and the second made in favour of himself and his two infant brothers on the 19th July 1907 in respect of all the other properties mentioned in the schedule to the plaint. It may be stated here parenthetically that one of these properties is a house in 47, Taltola Lane Calcutta, which, it is said, was acquired out of the funds of the Calcutta business and must consequently be regarded as the property of the owners of that business. We have thus to consider the factum and validity of the two gifts separately.
87. By the first gift, it is alleged that Kader Buksh gave away his share of the Calcutta business to Muhammad Ibrahim, at that time his only son. There is no documentary evidence in support of the gift, but we have the statements of witnesses, of whore: two were examined in Court and the others on commission. We have further entries in the books of account of the firm. The plaintiff asserts that there was no gift at all and that if the parties went through the form of a gift, it was never intended to be a real and operative transaction. She further contends that the gift, if it did really take place, did not satisfy the requirements of the Muhammadan Law. I am not prepared to reject entirely the evidence that in 1897, some transaction apparently in the nature of a gift did take place; but I am of opinion that what Kader Buksh did was never intended by him to take effect as a real gift. In the case of a transfer for consideration, where the question arises whether the ostensible purchaser is also the real purchaser, it is possible to apply the familiar test, usually conclusive in this class of cases, namely, what is the source of the purchase-money. In a case of gift, however, when it is alleged that the transaction was fictitious, this test naturally fails, and we have to rely upon other aspects of the matter, namely, the surrounding circumstance contemporaneous with the gift and the subsequent conduct of the parties concerned. Now, in the case before us, Kader Buksh was, in 1897, a man in business and in good health. His only son Ibrahim was a lad 15, 16 or 17 years old. His property, so far as we can gather, consisted of the hide business. What was the motive which could possibly have moved a man in that position to transfer to his boy, by way of gift, all that he had, namely, a flourishing business in Calcutta? No plausible explanation has been offered, If Kader Buksh was anxious to advance his son in life, he might possibly have taken him as a partner, but do theory has even been so much as suggested why he should retire from business completely and leave it in the hands of a youth, even though his brother was a partner. No reason has been put forward why Kader Buksh should deprive his possible issue of their share in the patrimony. As a matter of fact, at the time of the alleged gift, one of his wives was in the family way, and his second son was born, within eight months of the gift, on the 30th December 1897. Reliance, however, has been placed on what is called positive testimony. That testimony may point to the conclusion that some transaction in the way of an apparent transfer did take place at the time, but it does not establish with certainty that the transaction was intended to be real. The sheet anchor of the case for the defendant is the account books, extracts from which have been explained before us with great care and lucidity by Mr. Rasul. These accounts may be classified under three heads, namely, first, partnership accounts in the name of Kader Buksh Muhammad Ibrahim; secondly, the personal drawing account of Kader Buksh; and, thirdly, the deposit account of Ibrahim in respect of money given to him by Kader Buksh. These accounts, in my opinion, are by no means of a conclusive character, for it is well known that when parties have decided to enter upon a fictitious transaction, the accounts are made carefully to correspond to the apparent state of things; but, apart from this, there are inherent improbabilities in this case, which, cannot be overlooked. Thus, the deposit account of Ibrahim shows that in 1897 the sum of Rs. 14,386-1-0 stood to his credit. No explanation has been offered why such a large sum as this should be 'placed at the disposal of a boy of 15. His father was the source of this money and was presumably the owner. On the 22nd April 1897, the partnership account was altered, and the name of Muhammad Ibrahim was introduced. This, in my opinion, does not necessarily indicate that Muhammad Ibrahim thereby replaced 'his father as a partner of the firm. The change of name may be consistent with the theory of gift, but does not necessarily indicate that there was a gift for it is significant that no trace of a mention of gift is to be found in the account books. If there had been a real gift, it would have been only natural to recite it in the account books, when the substitution of name was made. In this connection, it may be observed that while one of the witnesses, Amin, says that Ibrahim was a partner from before, other witnesses maintain that he was only employed in the business. The mere entry of the name of Ibrahim accordingly does not show that there was a gift in his favour. To take one illustration, the Motihari business account was also transferred to the name of Ibrahim. But it has not been suggested that there was a gift of that business to Ibrahim. Much stress was laid by the defendant on the deed of dissolution of partnership, dated the 7th February 1907, between Abdul Gani and others and Muhammad Siddique. This, in my opinion, was admissible to establish the factum of dissolution of a firm recited therein as 'carried on by Muhammad Ibrahim, Hazir Buksh, Muhammad Amin, Abdul Latif and Muhammad Siddique in co-partnership between them.' This enumeration of partners is, however, really of little assistance, because if there was a benami in 1897, the parties would adhere to the benami when the partnership was dissolved in 19j7. We have, on the other hand, the significant fact that in 1897 when, it is alleged, the interest of Kader Buksh was transferred by way of gift to his son Muhammad Ibrahim, no notice was given to the public, and though the name was changed in the books of account, the original firm name was retained and used in transactions with the public. We have further the important fact that the gift was not recited in the account books, nor was there a written instrument, though the subject-matter of the transaction was property of considerable value. We have, besides all this, the incident of the purchase of the Taltola house on the 13th October 1904, when Abdul Bari, Abdul Majid and others sold the house to Hazir Buksh and Kader Buksh. The consideration for this transfer was money advanced to the vendors from the Calcutta business. The transfer, however, was not to Muhammad Ibrahim as a partner of the firm, but to Hazir Buksh and Kader Baksh. A desperate effort was made to establish that this was in reality a transfer to the firm. In my opinion, that attempt has entirely failed.. Besides, Hazir Buksh, in his registered deed of gift, which, I think, was admissible in evidence, stated on the 1st November 1907 that the Taltola House belonged to, himself and his deceased brother Kader Buksh, half and half. Indeed, in the schedule to the release, dated the 9th January 1908, the house is treated as the property of Kader Buksh. This could only be so if the consideration paid therefor belonged to Kader Buksh; and, as the purchase-money came from the Calcutta business, it is plain that in 1904, notwithstanding what might have happened in 1197, Kader Buksh was still treated as the proprietor of the income of the business. This, in my opinion, constitutes a serious difficulty in the way of acceptance of the case for the defendant that there was a real gift in his favour in 1897. The release, in fact, furnishes strong evidence against the reality of the gift of 1897. It was drawn up at the instance of Muhammad Ibrahim; yet it mentions only one Heba (the other is apparently a buksisnami,), whereby all properties (not excluding the Calcutta business) were given to the three sons. The description of the properties in the schedule shows that one-half of the Calcutta business belonged to Kader Buksh and not to Ibrahim, and consequently passed to the three sons by virtue of oral gift. Besides, in his deed of gift, Hazir Buksh further stated that ten or twelve years before, his brother Kader Buksh had, 'for some politic reasons,' substituted the name of Muhammad Ibrahim in the place of his own name in the papers and accounts of the firm and on declaration that Muhammad Ibrahim was the owner of his share of capital got the credit and debit entries in respect of capital, profit and loss made in the name of Muhammad Ibrahim. This dearly is a plain statement by Hazir Buksh that the transaction of 1897, which, be it noted, he does not describe as a gift, was not real and operative. We have, in addition to all this, the remark able fact that in an application for guardianship of his infant brothers, made by Muhammad Ibrahim on the 9th June 1908, no trace is found of the alleged gift of 1897; on the other hand, the schedule describes that a two-thirds share of the Calcutta business and the Taltola House belonged to the infants, an allegation wholly irreconcilable with the theory of a real gift of the Calcutta business to Muhammad Ibrahim in 1897. On a review of all these circumstances, I do not see any escape from the conclusion that there was no real gift of the Calcutta business to Muhammad Ibrahim in 1897, I am not unmindful that in this country, as in England, the settled rule is that the burden lies on the appellant to satisfy the Court that the finding of the trial Court which he assails is not supported by the evidence on the record: Lalljee Mahomed v. Dadahhai Jivanji Guzdar 34 Ind. Cas. 807 : 23 C.L.J. 190 at p. 204 : 43 C.833 and Colonial Securities Trust Co. v. Massey (1896) 1 Q.B. 38 : 65 L.J.Q.B. 100 73 L.T 497 : 44 W.R. 212, but the appellant has, I think, discharged this burden. In the view I take, it becomes needless to consider whether, if there was a real gift, it fulfilled the requirements of the Muhammadan Law. 1 am not unmindful that under the Muhammadan Law as administered by - British Indian Courts, where the subject of the gift is incorporeal property not susceptible of physical possession, a gift thereof may be completed by such transfer of control as may be appropriate and possible in the circumstances: Ameeroonnissa Khatoon v. Abedoounissa Khatoon 2 I.A. 87 : 15 B.L.R. 67 : 23 W.R. 208 : 3 Sar. P.C.J. 423 : 3 Suth. P.C.J. 87 (P.C.), Mullick Abdool Guffoor v. Muleka 10 C. 1112 at p 1123 : 5 Ind. Dec. (N.S.) 743, Anwari Begam v. Ninam-ud-din Shah 21 A. 165 : A.W.N. (1899) 8 : 9 Ind. Dec. (N.S.) 815 and Mahomed Buksh Khan v. Hosseini Bibi 15 I.A. 81 at. P. 91 : 15 C.684 : 12 Ind. Jur. 291 : 5 Sar.P.C.J. 175 : 7 Ind. Dec. (N.S.) 1040. But the question whether the gift of a share in a partnership business can be validly effected by delivery, and, if so, by what form of delivery, under the Muhammadan Law presents a problem of some nicety, as is clear from an examination of the following texts, and I reserve nay opinion thereon:
When one of two partners says to his copartner, 'I make a gift to thee of my right in the profit,' they (the jurists) say the gift is not valid if the property (i.e., capital stock) itself be in existence; because it is the gift of a Musha with respect to what is capable of division. But if the partner has consumed, destroyed, wasted the property, the gift is valid; because owing to its loss, destruction, it becomes a debt and a debt is not capable of division. Thus it is the gift of Musha with respect to what is not capable of division; therefore it is valid. (Fatawa Qadi Khan, Vol. IV, p. 282, Ed. Lucknow).
* * * *
If a person makes a gift to his partner, of his share in the partnership stock, Gap-able of division, it is invalid, because of the invalidity of the gift of an undefined part of a divisible subject. (Hidayah, Vol. VII, p. 491, Ed. Cairo).
* * * *
If one of two partners says to his copartner, 'I make a gift to thee of my share in the profit;' if the property be in existence it is not valid; if destroyed, it is valid. (Fatawa Sirajiyah, p. 138, Ed. Lucknow).
* * * *
If one of two partners makes a gift to the other of his share in the profit; if the property be in existence it is not valid because of its being capable of division; if it be destroyed, it is valid, because a debt is not capable of it (division). Thus it is laid down in the Muhit. (Bahr-al-Ra'iq, Vol. VII, p. 312, Ed. Cairo).
* * * *
When one of two partners says to his copartner, I make a gift to thee of my share in the profit,' they (the jurists) say it is not valid if the property be in existence because of its being a gift of Musha with respect to what is capable of division. But if the partner has destroyed the property, the gift is valid, because of its being then isqat (extinction). Thus it is laid down in the Zahiriyyah. (Fatawa Alamgiri, Vol. IV, p. 531, Ed. Calcutta).
* * * *
When one of two partners says to the other, 'I make a gift to thee of my share in the profit,' and the property is in existence, it is not valid because it is a gift of Musha with respect to what is capable of division. But if the partner has destroyed it, it (gift) is valid. (Radd-al-Muhtar, Vol. IV, p. 796, Ed. Constantinople).
* * * *
88. By the second gift, it is alleged that Kader Bukhsh, on the 19th July 1907, that is, about a month before his death, gave the remainder of his properties to his three sons. This raises two questions, namely, first, whether there was in fact such a gift, and, secondly, if there was, did it fulfil the requirements of the Muhammadan Law. It is worthy of note at the outset, before either of these questions is examined, that the second gift, even if established, would not affect the Calcutta business and the Taltola House, because the evidence does not show that these two properties form the subject-matter of the gift. The evidence to prove the second gift is based on the assumption that there was a real gift of the Calcutta business in 1897, and, consistently with that theory, seeks to establish that the transfer of the remainder of his estate was effected by Kader Bukhsh, by this supplementary gift. As regards the second gift, I am 'not satisfied on the evidence that it did as a matter of fact take place and was completed. There is no doubt oral evidence adduced by the defendant, but there are unexplained difficulties which cannot well be ignored. There is no mention of the second gift in the application for guardianship to which reference has already been made. The explanation is, to my mind, not quite satisfactory. Muhammad Ibrahim must be deemed to have been fully aware that the matter was of grave importance to him, and one would have expected him, as a man of ordinary prudence, to set out the title under which he claimed. There is also the fact that no document was executed; here again, any cautious man would have insisted upon the execution and registration of a deed of gift, when the result of that gift would be to deprive all the heirs, except the three sons of the donor, of what would otherwise devolve on them by right of inheritance. We have, in addition to this, the circumstance that no attempt appears to have been made to give effect to the alleged gift, either by change of names in the records of the Collector or in the books of the various firms. There is, besides, the noticeable fact that Hazir Bukhsh makes no mention of the second gift in his deed of gift. We cannot also overlook that the document makes no provision whatever for the female members of the family, namely, the two wives of the donor and his five daughters. No reason has been assigned why a man in the position of Kader Bukhsh, possessed of considerable wealth, should make no provision whatsoever for his own wives and daughters, and leave all that he had to his three sons, two of whom were six and ten years old. In the face of these difficulties, should we accept the oral evidence on the record? I am clearly of opinion that how far the testimony of these wit nesses is reliable, must be judged by the surrounding circumstance. In this connection, I may advert to the remark made by the Commissioner about the demeanour of some of the witnesses examined before him. Abdul Sattar is described as evasive and not trustworthy. Mahtabo, Hakima and Hadi Hassan appeared to him to have been tutored; it is difficult to say in whose interest they could have been so tutored, other than that of Muhammad Ibrahim, The letter written by Muhammad Ibrahim on the 9th February 1908 to Abdul Hamid furnishes some indication that Ibrahim was not above recourse to bribery. In this Court, a forlorn attempt was made to impute dishonesty to the Commissioner, who was a Judicial Officer of some standing. In my opinion, there is no foundation Whatever for this charge. I think there is also no force in the contention that the Com-missioner could not have really appreciated whether a Pardanashin lady under examination before him was or was not a 'trustworthy witness; whether a witness is reliable or not may be judged, not merely from demeanour, but also from the mode and manner in which the answers are given. I do not overlook that Mr. Justice Greaves thought that Muhammad Ibrahim is truthful and reliable and that the husband of the plaintiff is just the reverse. Bombay Cotton Manufacturing Co. v. Raja Bahadur Motilal Shivlal 29 Ind. Cas. 229 : 42 I.A. 110 : 39 B. 386 : 21 C.L.J. 528 : 28 M.L.J. 593 : 17 M.L.T. 408 : (1916) M.W.N. 788 : 2 L.W. 521 : 17 Bom. L.R. 455 : 19 C.W.N. 617 (P.C) and Rivers Steam Navigation Co. v. Hathor Steamship Co. 35 Ind. Cas. 193 : 20 C.W.N. 1022 : (1916) 1 M.W.N. 446 : 31 M.L.J. 159 : 4 L.W. 176 (P.C.), but we cannot at the same time overlook that Muhammad Ibrahim is deeply interested in the result of this litigation, and when the probabilities and the documentary evidence cannot be reconciled with his assertions, I cannot implicitly accept his assertions. My conclusion is that the evidence does not establish the second gift.
89. If, however, the second gift is deemed to be established by the evidence, the question arises whether it is valid under the Muhammadan Law. Upon an examination of the authorities, I have arrived at the conclusion that this question must be answered against defendant as is clear from the following texts:
If one person makes a gift of it (house) to two persons it is not valid according to Abu Hanifah, but it is valid according to Abu Tusaf and Muhammad. (Al Quduri, Vol. II, p. 10, Ed. Delhi).
'If one person makes a gift of it (house) to two persons, it is not valid according to Abu Hanifab, but it is valid according to Abu Yusaf and Muhammad.' For this is a gift of the entire (house) to two persons (jointly) as it is by a single act of transfer. Therefore no Musha is occasioned, as when (a house) is mortgaged with two persons. But according to him (Abu Hanifah), it is a gift of half the house to each of them. Therefore if it (the gift) is with respect to something incapable of division like a slave or slave-girl and one of them (donees) accepts it, it is valid (with respect to his share). Also because property is established for each of them (donees) with respect to the half and therefore the transfer would be likewise as it (property) is its (transfer's) effect. This is contrary to mortgage, as its effect is detention and it is established for each of them perfectly. Therefore if the debt of one of them (mortgagees) is paid, nothing of the mortgaged property will be returned. (Al-Jawharat-al-Nayyirah, Vol. II, p. 10, Ed. Delhi).
* * * *
If he makes a gift of a house to two of his sons one of whom is a minor in his charge, the gift is invalid according to all. (Fatawa Qadi Khan, Vol. IV, p. 183, Ed. Lucknow).
* * * *
The Hedayah (Vol. VII, p. 496, Ed. Cairo) reproduces Texts I and II.
* * * *
'If two persons jointly make a gift of a house to one man it is valid.' In the converse case it is not valid according to Abu Hanifah, but the two disciples declare it to be valid. (Al-Inayah, Vol. VII, p. 495, Ed. Cairo).
* * * *
The Kifayah (Vol. VII, p. 496, Ed. Cairo) reproduces the reasons for the difference of opinion between the master and his disciples given in text II.
* * * *
The gift of a house jointly by two persons to one man is valid. But its converse is not valid (according to Abu Hanifah) contrary to them (i.e., the opinion of the two disciples)--(Multaqal-Abhar by Ibrahim, b. al-Halabi d. 956 H. H.=1549 A. D., p. 137, Ed. Constantinople).
* * * *
If he makes a gift of a house to two persona one of whom is an infant and the other adult and the infant is in, h is charge, the gift is not valid (lam tajuz) unanimously. For at the very moment of making the gift he becomes possessed of the share of the infant and thus the other half remains in a state of Musha. Thus it is laid down in the Muhit (Bahr-al-Raiq, Vol. VII, p. 315, Ed. Cairo).
* * * *
If he makes a gift in favour of an adult person and in that of an infant in the charge of the adult; or in favour of two of his sons, one infant and the other adult, it is not valid (lam tajuz) unanimously. (Durr-al-Mukhtar, Vol. III, p. 498, Ed. Lucknow).
* * * *
Al Hakim states--A man makes a gift of a house to two of his sons one of whom is adult and the other is a minor and the adult son takes possession (of it). The gift is absolutely void and this is the correct view. For the gift in favour of the minor is complete at the very moment of the declaration of the gift because the seisin or possession of the father is equivalent to his (minor's) seisin or possession (Qabz) : Whereas the gift in favour of the adult son stands in need of acceptance. Thus the gift in favour of the minor precedes (that in favour of the adult) and thus confusion (shuyn) is occasioned. And the device is that he (father) should deliver possession of the house to the adult son and then make a gift of it to both of them. Thus it is laid down in the Wajiz of Al Kardari (Fatawa Alamgiri, Vol. IV, p. 549, Ed. Calcutta).
* * * *
Al-Tahtawi (Vol. III, p. 400, Ed. Cairo), the celebrated commentary on the Darr-al-Mukhtar, reproduces Text X.
* * * *
'If he makes a gift of a house to two persons, etc.' Al-Ramti says that it is obvious from this that if the two persons be both infants in his charge, it is valid and what is stated in the Bazzaziyah indicates this. But all this is in accordance with the opinion of the two disciples (Abu Tusuf and Muhammad) and not according to his (Abu Hanifah's) opinion. (Here Text III is quoted). Mauhat-al-Khaliq, Vol. VII, p. 315, Ed. Cairo. It is a commentary on the Bahral-Ra'iq by Ibn Abidin, the author of the Raddul-Muhtar, d. 1835 A. D.)
* * * *
'Or in favour of two of his sons etc.' Text III and XI is quoted here. (Radd al Mukhtar, the celebrated commentary on the Durr-al-Mukhtar by Ibn Abidin d. 1835, Vol. IV, p. 514, Ed. Cairo).
* * * *
I do not overlook the unfavourable judicial comments made from time to time upon the principle of Musha, specially, the observation of Sir Barnes Peacock in Muhammad Mumtaz Ahmad v. Zubaida Jan 161. A. 205 at p. 215 : 11 A. 460 : 5 Sar. P.C.J. 433 : 6 Ind. Dec. (N.S.) 721
The doctrine relating to the invalidity of gifts of Musha is wholly unadapted to a progressive state of society and ought to be confined within the strictest rules' [see also Mahomed Buksh Khan v. Hosseini Bibi 15 I.A. 81 at. P. 91 : 15 C.684 : 12 Ind. Jur. 291 : 5 Sar. P.C.J. 175 : 7 Ind. Dec. (N.S.) 1040, Ibrahim Goolam Ariff v. Saiboo 34 I.A. 167 : 35 C. 1 : 6 C.L.J. 695 : 11 C.W.N. 973 : 9 Bom. L.R. 872 : 4 A.L.J. 572 : 17 M.L.J. 408 : 2 M.L.T. 479 : 4 L.B.R. 154 (P.C.), Kalidas Mullick v. Kanhaya Lal Pundit 11 I.A. 218 : 11 C. 121 : 8 Ind. Jur. 638 : 4 Sar. P.C.J. 578: 5 Ind. Dec. (N.S.) 839 (P.C), Alabi Koya v. Mussa Koya 24 M. 513 : 11 M.L.J. 227 and Jahedunnessa Bibi v. Najibul Islam 8 Ind. Cas. 38 : 15 C.W.N. 328]. But it is plain that the doctrine, though not favoured, cannot be altogether ignored or repudiated: Vahazullah Sahib v. Boyavati Nagayya 30 M. 519 : 17 M.L.J. 562 and Ibrahim Goolam Ariff v. Saiboo 34 I.A. 167 : 35 C. 1 : 6 C.L.J. 695 : 11 C.W.N. 973 : 9 Bom. L.R. 872 : 4 A.L.J. 572 : 17 M.L.J. 408 : 2 M.L.T. 479 : 4 L.B.R. 154 (P.C.). In my opinion the case before us falls within the strict letter of the texts on the subject [Nizam-ud-din v. Zabeda Bibi 6 N.W.P.H.C.R. 338], and this indeed appears to have been realised by the defendant himself and his advisers I refer to the remarkable passage in the deposition of Mahomed Ibrahim in which he describes the mode in which the gift was effected:My father said that he had already disposed of his share in the Calcutta firm in my favour, and he was disposing of the rest of his properties in favour of myself and my two younger brothers, and my father -asked me to accept the same for myself and on behalf of my younger brothers, and he made over all the documents in respect of these properties as also in respect of the Zemindari to me, requesting me to take charge of them on behalf of myself and of my two younger brothers.' I confess that this does bear the appearance of an attempt, in course of evidence, to show that the requirements of the law were satisfied. It is extremely improbable that Kader Bux was aware of the device whereby the law of Musha could be avoided as described in the Fatawa Alamgiri. But it is plain that, even if the evidence be accepted, the device was not strictly carried out. My conclusion is that the evidence does not conclusively establish the second gift, and that if it does, the gift was not valid and operative under the Muhammadan Law.
90. As regards the third question, Mr. Justice Greaves has found that the plaintiff has failed to establish her allegation that the release was obtained from her upon a misrepresentation as to the nature of the instrument. No attempt has been made in this Court to support the contention that the document was represented to be a power of attorney; in fact, that allegation has been abandoned in this Court. But the validity of the release has been questioned on the ground that it was executed under circumstances which do not make it binding upon a Pardanashin lady, and the view has been maintained that the Court, when called upon to deal with a deed executed by a Pardanashin lady, must satisfy itself upon the evidence, first, that the deed was actually executed by her, or by some persons duly authorised by her, with a full understanding of what she was about to do; secondly, that she had full knowledge of the nature and effect of the transaction into which she is said to have entered; and, thirdly, that she had independent and disinterested advice in the matter. How far the tests indicated are inflexible rules of law may be a matter for controversy, and it may not be easy to reconcile all the dicta to be found in various decisions of the Judicial Committee where the validity of deeds executed by Pardanashin ladies came under review. The oases on the subject will be found analysed in the judgments of this Court in Bindubashini Dasi v. Giridhari Lal Roy 3 Ind Cas. 830 : 12 C.L.J. 115, Alikjan Bibi v. Rambaran Shah 7 Ind. Cas. 166 : 12 C.L.J. 357 [Moonshee Buzloor Ruheem v. Shumsoonnissa Begum 11 M.I.A. 551 at p. 585 : 8 W.R.P.C. 3 : 2 Suth. P.C.J. 59 : 2 Sar. P.C.J 259 : 20 E.R. 208, Geresh Chunder Lahoree v. Musammat Bhuggobutty Debia 13 M. I.A. 419 : 14 W.R.P.C. 7 : 2 Suth. P.C.J. 339 : 2 Sar. P.C.J. 579 : 20 E.R. 607, Syud Fuzzul Hossein v. Amjud Ali Khan 17 W.R. 523 (P.C), Ashgar Ali v. Delroos Banoo Begum 3 C. 324 : 3 Sar. P.C.J. 749 : 3 Suth. P.C.J. 444 : 2 Ind. Jur. 601 : 1 Ind. Dec. (N.S.) 794, 'Tacoordeen Tewarry v. Nawab Sped Ali Hossein 1 I.A. 192 : 13 B.L.R. 427 : 21 W.R. 340 : 3 Sar. P.C.J. 368, Sudisht Lal v. Musammat Sheobarat Koer 8 I.A. 39 : 7 C. 245 : 4 Sar. P.C.J. 222 : 5 Ind. Jur. 270 : 3 Ind. Dec. (N.S.) 707, Shambati Koeri v. Jago Bibi 29 I.A. 127 : 29 C. 749 : 6 C.W.N. 682 : 4 Bom. L.R. 444 : 8 Sar. P.C.I. 301 (P.C), Amarnath Sah v. Achan Kuar 19 I.A. 198 : 14 A. 420 : 6 Sar. P.C.J. 197 : 7 Ind. Dec. (N.S.) 637 (P.C.), Mahomed Buksh Khan v. Hosseini Bibi 15 I.A. 81 at. P. 91 : 15 C. 684 : 12 Ind. Jur. 291 : 5 Sar. P.C.J. 175 : 7 Ind. Dec. (N.S.) 1040, Sajjad Husain v. Abid Husain Khan 16 Ind. Cas. 197 : 39 I.A. 156 : 34 A. 455 : 16 C.L.J. 613 : 14 Bom. L.R. 1055 : 16 C.W.N. 889 : 23 M.L.J. 210 : 10 A.L.J. 364 : 12 M.L.T. 361 : (1912) M.W.N. 976 : 15 O.C. 271 (P. C.), Ismail v. Hafiz Boo 33 I.A. 86 : 33 C. 773 : 3 C.L.J. 484 : 8 Bom. L.R. 379 : 10 C.W.N. 570 : 16 M.L.J. 165 : 3 A.L.J. 353 (P.C.) and Kali Bakhsh Singh v. Ram Gopal Singh 21 Ind. Cas. 985 : 36 A. 81 at.p. 91 : 26 M.L.J. 121 : 18 C.W.N. 282 : 19 C.L.J. 172 : 16 Bom. L.R. 147 : 15 M.L.T. 1230 : (1914) M.W.N. 112 : 12 A.L.J. 115 : 16 O.C. 378 : 41 I.A. 23 (P.C.) : 1 O.L.J. 67]. In view of the weighty observation of Lord Haldane, L. C., in Kreglinger v. New Patagonia Meat and Gold Storage Co. (1914) A.C. 25 at p. 39 : 83 L.J. Ch. 79 : 109 L.T. 802 : 58 S.J. 97 : 30 T.L.R. 114, as to the proper use of judicial procedure as binding authorities, it is plain that no useful purpose would be served by an analysis of the facts of each of these cases, which fall broadly into two groups, namely, first, where the person who seeks to Bold the lady to the terms of her deed is one who stood towards her in a fiduciary character or in some relation of personal' confidence; and, secondly, where the person who seeks to enforce the deed was an absolute stranger and dealt with her at arm's length. In the former class of cases, the Court will act with great caution and will presume confidence put and influence exerted; in the other class of cases, the Court will require the confidence and influence to be proved intrinsically; this is a fundamental distinction which does not appear to have been always kept in view. A great deal will also depend upon the intellectual attainments of the lady, and the Court will naturally not be inclined to set aside the deed, where the lady is proved to have been of business habits, to have been literate and to have possessed capacity to judge for herself, Tested in the light of these principles, how does the case before as stand? Here is a deed obtained by a brother from her sister. By that deed she parts with all her interest in the estate of her father for a sum of Rs. 4,500. There is no shadow of a doubt that the amount itself is wholly inadequate as the price of her share in the patrimony. It is represented to her that by the custom of the community, she is excluded from the inheritance. She is further told that her father had divested herself of all he possessed by two oral gifts. No doubt we have evidence given that the deed was read over to her and explained to her and that she had the advice of her husband. It is clear, however, that the deed is so expressed that its meaning and effect are by no means quite beyond doubt even with the aid of the elucidation by learned Counsel. It is to my mind equally clear that the husband of the plaintiff was absolutely untrustworthy and was ready to sacrifice the interest of his wife for the sake of his personal benefit. If, as a matter of fact, the custom of exclusion existed, if in truth the oral gifts were real transactions and were operative in law, a deed of release was wholly superfluous. The deed, after the most careful consideration of attendant circumstances, does not impress me favourably; I do not attach much importance to the recitals, some of which at any rate may be deemed exhibitions of the art of the conveyancer which, whether medical or modern, cannot be permitted to mislead the Court. I do not overlook the statement of the Registering Officer, which shows that the parties were careful to conform to all the formalities; but the substance of the matter still remains that the deed was obtained from the plaintiff by her brother on representation of a state of facts untrue in material particulars. In these circumstances I do not think the deed can stand. I am not unmindful of the importance of the rule that a settlement of a disputed or doubtful claim is a valid and binding arrangement which the parties thereto are not permitted to deny, ignore or repudiate. This principle is deducible from a long line of cases which will be found collected in the judgment of this Court in Upendra Nath Bose v. Bindeshri Prosad 32 Ind. Cas. 468 : 22 C.L.J. 452 at p. 476 : 20 C.W.N. 210, but that principle is not applicable to the circumstances of this case. The defendant does not assert that there was a compromise to put an end to dispute and to terminate or avoid litigation, and that the consideration for the compromise was, not the sacrifice of a right, but the abandonment of a claim. What we have here is a surrender of the rights of the plaintiff for a nominal consideration, obtained from her on the representation that she had no rights whatsoever; this cannot be deemed an' honest settlement of an existing dispute which a Court of Justice should not permit the plaintiff to question.
91. As regards the actual payment of the consideration, the plaintiff has failed to satisfy me that she did not receive the money, so that she can be permitted to have her deed cancelled only on re-payment of that sum. This sum must consequently be debited against her when the accounts are taken under the decree.
92. I hold accordingly that this appeal must be allowed, the decree of Mr. Justice Greaves set aside and the suit decreed with costs in both Courts in the terms indicated in the judgment of Mr. Justice Woodroffe.