B.B. Ghose, J.
1. This is an appeal by the defendants against the judgment and decree of the Additional District Judge of Tipperah reversing the decision of the Subordinate Judge in a suit for partition. The plaintiffs claim as heirs of one Hossanaddin. He left four daughters, two of whom are plaintiffs and two are defendants. Hossanaddin is said to have-executed a registered kabala in favour of of his wife of all the lands in dispute. That document was marked Ex. A. After the death of Hossanaddin his widow executed a document Ex. B dated the 29th Assin 1316, by which she transferred all the lands she received from her husband under the document Ex. A in favour of one of her daughters defendant 1. Defendant 1 resided with her husband with Amina Bibi, the widow of Hossanaddin. After the death of Amina Bibi the plaintiffs have brought this suit for partition on the allegation that they are in-possession of some of the properties left by their father. They disputed the document Ex- A also. The Subordinate Judge found both the documents to be genuine; and bona fide and he held that title passed to defendant 1 under the document Ex. B, and upon that finding he dismissed the suit. On appeal by the plaintiffs the learned Judge has reversed that decision.
2. One matter should be first stated and it is this, that one of the plaintiffs, Moyna Bibi, gave up her claim to the property by a petition in the Court of appeal. There does not seem to be any reason why the learned Judge did not act upon that petition. The pleader of that plaintiff was certainly responsible for the fact as to whether that petition was filed with the knowledge and consent of Moyna Bibi. Moyna Bibi has been made a respondent here and defendant I has claimed the share which would belong to Moyna Bibi even if she is found to have a share, on the basis of the petition. But Moyna Bibi has not appeared in this Court to dispute defendant 1's title. The first thing, therefore, that is necessary to be mentioned is that Moyna Bibi would not be entitled to any share in the property and that share if she has any would go to augment the share of defendant 1. It should also be noticed that another daughter of Hossanaddin who was made a defendant did not claim any share in the property left by her father. She supports the case of defendant 1. There is then left only one of the plaintiffs Sahajan Bibi, plaintiff 1 who is really the contesting plaintiff.
3. The learned Judge has reversed the decision of the Subordinate Judge mainly upon the ground that Amina Bibi, the mother of the plaintiffs, was an illiterate pardanashin woman and any one taking a conveyance from such a person was bound to prove affirmatively not only that the transferrer executed the iustrument but understood and grasped the full import of what she was doing. The learned Judge ,held that there was no evidence that there was any explanation of the contents of the instrument having been made to Amina Bibi and, therefore, the defendant 1 has not been able to prove the validity of the document so as to affect the title of the plaintiff by inheritance. The objection does not appear to have been taken distinctly in the trial Court by the plaintiffs that the document was not explained to their mother.
4. The learned Judge, however, held that when the bona fide of the document was challenged by the plaintiffs the defendant was bound to prove the validity of the document from every possible angle of attack. That may be true in certain cases, but when one considers the case of an absolute gift or an absolute sale by a pardanashin woman it is not always necessary that there should be proof of explanation of the terms of the document. It would be sufficient in many cases to show that the pardanashin woman knew that it was an absolute conveyance of title by which she was divesing herself of all interest in the property. Such documents are quite simple and the mere knowledge of the fact that it was a kobala or gift 'would be sufficient explanation of the nature of the document. If you add to that the circumstances of possession, then the question of explanation becomes almost academical. The learned Judge seems also to have thought that although the transaction does not actually smack of fraud it was an extremely questionable one. Fraud does not seem to have been alleged by the plaintiffs. They only say that no such document was executed. Fraud and forgery are quite different things, and when forgery was alleged, although not in so many terms, it excludes the idea of having a document executed by fraud. There are certain other elements which the learned Judge failed to take into consideration. The question is whether after the death of their mother the plaintiffs ever came into possession of any portion of the property left by her. Amina Bibi does not seem to have claimed any interest in the property after the execution of Ex. B. If after the death of Amina Bibi defendant 1 alone was in possession of the property for a considerable number of years then the presumption as to the validity of the document would be strengthened a good deal. The learned Judge also failed to take into consideration the fact that there was nothing unnatural in'executing the document in favour of defendant 1 who was the only daughter of Amina Bibi who was living with her. The other daughters probably were well off and had been married else where.
5. It is common knowledge that when people of this class desire to keep a daughter in the house they marry her to a comparatively poor man who would live in the father-in-law's family as a ghar jamai. Under these circumstances it is not unnatural that the small property which belonged to Hosanaddin would be given to that daughter alone. These are the elements for consideration in dealing with this case. As these matters have not been considered by the learned Judge we think that the appeal should be allowed, the judgment and decree of the Additional District Judge set aside and the appeal sent back to the lower appellate Court for re-hearing after consideration of all the circumstances stated above. The costs will abide the final result.
6. I agree.