B.K. Mukherjea, J.
1. This appeal, under Clause (15) of the Letters Patent, is directed against the judgment of my learned brother M. G. Ghose J. passed in S.A. No. 1982 of 1934. The appellants are the plaintiffs and the suit was one commenced by them to recover possession of the lands in suit on establishment of their title by purchase. The facts lie within a short compass and may be stated as follows. The disputed lands admittedly belonged to one Jitendra Chandra Nandi, husband of defendant 4 who died in June 1928, having suffered from pthisis for a period of about two to three years before his death. In July 1927, a man named Brojo Nath Goswami came to the village where Jitendra lived and as he was reputed to be a man of great sanctity and spiritual powers, he made a large number of disciples from among the villagers. Jitendra was also attracted to Brojo Nath, and in August 1927, almost within a month, after they became acquainted with each other, Jitendra executed a deed of gift in respect of the property in suit in favour of this Brojo Nath who was described in the document as the spiritual preceptor of Jitendra. Brojo Nath left the village in or about the month of February 1928, and he came back again early next year, after Jitendra had expired, and in February 1929, he sold the property in suit to the plaintiffs for a consideration of Rs. 1500 only. The property was at that time in possession of an usufructuary mortgagee whose term expired in January 1931. Thereupon, the plaintiffs went to take possession of the property, but were resisted by the defendants, which led to the institution of the present suit.
2. The suit was practically contested by defendant 4 the widow of Jitendra, and her contention in substance was that the deed of gift executed by her husband in favour of Brojo Nath was an invalid document, being brought about by fraud and undue influence of the donee, who was really an impostor and a vicious man. It was said that the mind of Jitendra was enfeebled by illness, and he made the gift under the false impression that Brojo Nath would bring him round and cure him of his disease by miraculous powers. At the time of hearing, a further point was raised that the gift was void under Hindu law on account of its being made during the illness of the donor, a circumstance which brings it within the category of adatta or void gifts, as described by the Hindu law givers.
3. The trial Judge came to the conclusion that the gift was void under Hindu law. He further held that the document was executed under undue influence which was exercised by Brojo Nath over Jitendra, and the transaction was an unconscionable one on the face of the deed. The plaintiffs were found to be bona fide purchasers for value, but that could not give them any protection in the opinion of the learned Munsif. He accordingly dismissed the plaintiff's suit. On appeal the learned Sub-Judge affirmed in a way the finding of the Munsif as regards the existence of undue influence. He, however, reversed the judgment of the Munsif on the ground that the undue influence which was exercised by Brojo Nath over Jitendra ceased sometime before Jitendra's death, and the latter was free therefore to exercise bis right of revocation, if he was at all willing to do it. Jitendra, far from revoking the gift, rather ratified it, as his statement to his uncle showed. The Sub-Judge held further that the plaintiffs being bona fide purchasers for value without notice, the power of revocation could not be exercised against them, and that defendant 4 was estopped from denying the rights of the donee, as her own omissions led the plaintiffs to purchase the property on the bona fide belief that it was the property of Brojo Nath. The result was that the Court of Appeal below decreed the plaintiff's suit. Against this decision a second appeal was taken to this Court, which was heard by my learned brother M. C. Ghosh J. sitting singly. The learned Judge reversed the decision of the Court of Appeal below and restored that of the trial Court. He was of opinion that the gift was invalid according to Hindu law and even apart from that it was voidable as being brought about by undue influence. He held that there was nothing to show that the undue influence ceased before the death of Jitendra, and that it was open to the legal representatives of a donor to exercise the right of revocation, after the death of the latter. It was further held that the plaintiffs could not claim to be bona fide purchasers for value, inasmuch as they were inhabitants of the same village, and were hence presumed to be acquainted with all the circumstances attending the deed of gift. It is against this decision that the present appeal has been preferred.
4. Mr. Gupta who appears in support of the appeal has argued in the first place that the gift was not a void gift according to the rules of Hindu law. It has been said in this connexion that as the provision of Section 126, T.P. Act, is based on general principles, and does not offend any rule of Hindu law, the provision of that section should be applied in determining as to whether the gift in this case is revocable-or not. In the second place Mr. Gupta has contended that the finding as regards-undue influence is not a proper finding in law. The last contention put forward is that the plaintiffs being bona fide purchasers for value without notice would get complete protection under Section 126, T.P. Act, and it was not proper for the learned-Judge sitting in this Court in second appeal to reverse the finding of fact arrived at by both the Courts below concurrently on this point.
5. Now so far as the first point is concerned, the question is whether the circumstances under which the gift to Brojo Nath was made would make it an invalid or void gift under any rule of Hindu law. The Hindu law-givers have discussed the question of validity of gifts, under the topic or form of litigation known as 'Resumption of gift.' After discussing what is deya (fit to be given), adeya (unfit to be given) and dutta which means what is irrevocably given and cannot be taken back, the Smriti writers proceed to say what is odutta and this expression literally means 'not given' or what though given is not deemed to be given in the eye of law. Narada gives sixteen instances of such adatta or void gifts and they are as follows:
What has been given by a man under the influence of (1) fear or (2) anger, hatred or (3) sorrow or (4) pain or (6) as a bribe, or (6) in jest or fraudulently (7) under false pretences or (8) by a child or (9) by a fool (10) by a person not his own master, or (11) by one distressed (aarta) or (12) by one intoxicated or (13) by one insane or (14) in consideration of a reward thinking the man will show me some service and so on is invalid; (15) what was given from ignorance to unworthy man thought worthy or (16) for a purpose thought to be virtuous through ignorance : Narada IV; 811 S.B.E. p. 129.
6. There is one text of Katyayana which makes an exception in case of gift made by a person suffering from a disease:
If what a man has given or promised to give is for religious purposes, then whether he is in health or sickness it must be given : vide Sen's Hindu Jurisprudence p. 90.
7. It will be seen from the classification of (adatta) or non-given things mentioned above that they embrace a variety of circumstances including want of capacity of the donor, either permanent or temporary, an absence of real intention to make a gift as well as all the elements of fraud, misrepresentation or mistake which invalidate a contrast in modern law. The classification is not strictly in accordance with modern notions of jurisprudence and there is no distinction made between voidable and void transactions. As the expression used is adatta or not given, the conception undoubtedly was that these were instances of void gifts where the title did not pass to the donee, though the donor had to institute a suit to recover the property back. It is in this sense of void gift that the expression has been used also by modern lawyers: Sen's Hindu Jurisprudence p. 88; Gour's Hindu Coda Section 2163, 2164.
8. Section 129, T.P. Act, as it stood before the amendment of 1929, and it is the old section that applies to the present case, kept the rules of Hindu law unaffected by anything contained in Ch. 7, T.P. Act. If in the present case the transaction really comes under any of the 16 heads of void gifts as enumerated by Narada, I am inclined to think that no question of bona fide purchase for value would in that case arise and the donee having acquired no title he could not convey any to the plain. tiffs. Now both the trial Court as well as this Court in second appeal took the gift to be void because it was made during Jitendra's illness. The word used by Narada is (aarta) or distressed, which has been interpreted by Mitakshara to mean 'overwhelmed with disease.' Taking this along with other kinds of infirmity that are mentioned by Narada as invalidating a gift, the idea must be that the donor is in very great physical distress brought on by illness which makes him incapable of thinking and acting properly, or of forming a rational estimate as regards the consequences of his action. The man must be overwhelmed with the disease, in the sense that his mind must be unsettled by it before the gift can be repudiated as a void gift in law. In this case Jitendra was undoubtedly suffering from a wasting disease. But the evidence is that he was freely moving about and attending to his normal works. Far from being in extreme bodily pain at the time when the gift was made, the evidence of the respondent her-self is that he was spending his time in the company of the Sadhu who taught him to use spirituous liquors, and other intoxicating drugs. It may be that the Sadhu did exercise an undue influence upon him, which he was powerless to resist, but it cannot be said that it was the disease which impaired his judgment and the gift is void on that account. I am unable to hold that the gift was void as being made by a person overwhelmed with illness, as the expression is used by Mitakshara. In this view it is not necessary to consider as to whether the gift, even though made during illness, is protected by the text of Katyayana which excepts gifts for religious purposes. It is indeed a doubtful point as to whether the donor bad really a religious object in making the gift.
9. As the principles of Hindu law do not assist the respondent, we have to see whether the gift can be revoked by reason of undue influence exercised by Brojo Nath upon Jitendra. On this point there is unanimous finding of all the Courts that the transaction was vitiated by undue influence. Mr. Gupta assails this finding on the ground that even if it is conceded that Brojo Nath was in a position to dominate the will of Jitendra, the lower Appellate Court having expressly found that the transaction was not unconscionable, the burden would be upon the defendants to show that the donee did use his position to obtain an unfair advantage over Jitendra. The proposition is undoubtedly sound: vide Poosathurai v. Kannappa Chettiar AIR 1920 PC 65, but I do not think that the Courts below really misplaced the burden of proof. The trial Court came to a definite finding on this point being of opinion that the transaction was unfair. The lower Appellate Court, though it did not concur with this finding, actually held on evidence that Jitendra's mind was enfeebled by disease and as he acted under the impression created by Brojo Nath that the latter would cure him of his disease by supernatural powers, the gift was the result of exercise of undue influence. It is true that the finding of the lower Appellate Court is rather of a halting character, but this was affirmed by this Court in second appeal, and I am unable to hold that there is any error of law vitiating this finding. The gift being brought about by undue influence is clearly revocable under Section 126, T.P. Act, and the only question that remains to consider is as to whether the plaintiffs can claim protection as bona fide purchasers for value without notice under the provision of that section,
10. It is a well established proposition of law that in case of a gift tainted by undue influence and imposition of the person procuring the gift, even an innocent third party cannot retain the gift, if he is a mere volunteer. But if he is a purchaser for value without notice, there is no obligation of restitution on his part: vide 'White and Tudor L. C. in Equity, Vol. 1, p. 296, Edn. 8. On this point the trial Court and the Court of Appeal below came to the concurrent finding that the plaintiffs were purchasers for value without notice. M. C. Ghosh J. has reversed the finding on the grounds that the plaintiffs did not make a specific case of want of notice in their plaint and they being co-villagers must be presumed to know everything in connexion with the deed of gift. This view does not appear to be sound. The plaintiffs could not possibly make a case of want of notice in their plaint without knowing that the defendant would set up a plea of undue influence as regards the deed of gift. Evidence was however adduced by the plaintiffs on the point, and as I find from the records, it was absolutely one-sided which was not even challenged by cross-examination on the defendant's side.
11. Moreover, the fact of the plaintiffs being co-villagers of Jitendra could not raise any presumption of their having notice of the undue influence which was exercised upon him by Brojo Nath. As the lower Appellate Court painted out, Brojo Nath came back to the village only to make the transfer. It was an open transaction and ha made over to the vendees the khatians and other documents relating to the property. There was no objection or protest of any kind from the side of defendant 4. These being the facts found concurrently by the Courts below, I think it is not proper to set aside the finding in second appeal. The result is that though the gift was procured by undue influence, yet the plaintiffs being purchasers for value with-out notice, the right of revocation cannot be exercised against them. The Letters Patent appeal is therefore allowed. The decision of M. C. Ghosh J. is set aside and that of the lower Appellate Court restored with costs in all the Courts.
Nasim Ali, J.
12. I agree.