1. This appeal is in a suit for partition which was instituted by the plaintiff in the Court of the Subordinate Judge at Maldah on 13th August 1928. She claims 8 annas share in the properties, many in number described in three schedules annexed to the plaint, as heir of her deceased husband Tarun Ram Rai. Tarun Ram who was the eldest son of Bhaja Mohan died in November 1919, leaving him behind his widow, the plaintiff, and two married daughters, Ram Kumari and Ram Rupini. The defendant to the suit is Tarun Ram's younger brother Ram Kinkar. It is the common case of the parties that the properties in suit, except the Benares house, descended to Tarun Ram and Ram Kinkar on the death of their father Bhaja Mohan in 1897. Tarun Ram was a major then but Ram Kinkar who was younger to the former by about 13 years was at that time a minor. It is also the common case of the parties that Tarun Ram as karta managed the joint properties (called in these proceedings as the Harishchandrapur Estate, Barataraf) up to the year 1313 B.S. (1906-07). Whether Tarun was capable of managing or did manage thereafter is one of the important points in controversy. The Benares house was a gift to the two brothers from their paternal aunt Ananda Moyee.
2. On 12th Bysack 1320 (25th April 1913) four documents were executed and registered two days later. They are : (i) a patni patta executed by Tarun Ram in favour of Ram Kinkar (Ex. G II-93); (ii) a corresponding patni kabuliyat executed by the latter in favour of the former (Ex. G, not printed). By this transaction Tarun Ram purported to grant to his brother a lease in perpetuity of his undivided 8 annas share in all the zamindaries and in many lakhirajes, at a fixed annual rent of Rs. 16,473-5-7. Deducting therefore the amount representing Government revenue and cesses the net munafa reserved in his favour was Rs. 12,000 a year. This was made payable in twelve equal monthly instalments. The salami was fixed at Rs. 25,000; (iii) a deed of gift by Tarun Ram in favour of his brother of his undivided 8 annas share in all the remaining properties, moveable and immovable, except the Benares house and the Debipur garden (Ex. H 11-101); (iv) a deed of release by Ram Kinkar in favour of Tarun Ram in respect of his undivided 8 annas share in the Benares house and in the Debipur garden (Ex. I, 11-107). The result of these transactions, if real and effectual, was that Ram Kinkar got all the properties, moveable and immovable, except the Benares house and the Debipur garden, subject to the obligation of paying annually a net sum of Rs. 12,000 to Tarun Ram and Tarun Ram got exclusively to himself the Benares house and the Debipur garden and the right to receive as patni munafa Rs. 12,000 annually, payable in equal monthly instalments of Rs. 1000; if these transactions be real and effective it is obvious that the plaintiff's suit for partition must fail. The plaintiff anticipated this apparent difficulty and so in her plaint she made the case that these transactions were void in law, as according to her, her husband was of unsound mind at the time, and that at any rate they represented paper transactions never intended to be acted upon. Seeing that after her husband's death she herself had taken proceedings to realize patni rent and had received from the defendant the said munafa on several occasions, she offers an explanation in several paragraphs of her plaint (paras. 7, 8, 9, 10, 16 and 19). The learned Subordinate Judge found that Tarun Ram was a man of eccentric habits but was never a lunatic and the transactions noted above were genuine ones, meant to be acted upon, and had in fact been acted upon. He accordingly dismissed the plaintiff's suit with costs.
3. In the appeal we have to consider two questions urged before us, namely (i) whether Tarun Ram was a lunatic at the material time, (ii) If not, are these transactions mere sham or benami ones? As the evidence bearing upon both the points is intermixed, we proceed to deal with them together.
4. The plaintiff who was examined on commission has given the details of her case. Her story in broad outlines is this : that after her father-in-law's death her husband became the karta and managed the joint properties and managed them well till 1313 or 1314 (1906-07). At Brindaban, where he had accompanied his mother on a pilgrimage, he incurred the habit of smoking ganja (hemp) and in a short time became an inveterate ganja smoker, smoking in large quantities and at all times of the day. That soon affected his brain. He became a violent lunatic in 1315 or 1316 (1908-09), a raving and dangerous one, and continued to be so, till his death in November 1919. Ram Kinkar Roy and the wellwishers of the family anticipated that he would in his madness make whimsical dispositions of his property in favour of strangers and enemies of the family and to prevent him from so doing got hold of him and had the patni patta and deed of gift executed by him. To keep up the appearance of these being genuine transactions, Ram Kinkar executed the corresponding patni kabuliat and a deed of release in favour of his brother. She did not know of these deeds and transactions till shortly after her husband's death. The story how she came to know of them is stated in para. 7 of her plaint and in the first part of her examination in chief. Just after her husband's death at Baraduari, where she had been living with her husband, her two daughters and their husbands and children for some years past, she came to the family dwelling house at Harrischandrapur, where Ram Kinkar was staying. She was told by the latter that she had no right to come there and reside at that house, as her husband had in 1320 (1913), made a gift of the same to him and had also granted him patni settlement of his share in the zamin-daries and lakhirajes at a net munafa of Rs. 12,000 a year. She was taken aghast but could not say much then as she was overwhelmed with grief at her husband's recent death. Ram Kinkar further told her that as the income of the estate was not very much, Rs. 12,000 a year was quite fair for her share and that he would pay her the said amount. She accepted the offer, as she was helpless, overwhelmed with grief, had no competent advice, and above all was in need of money for defraying the expenses of the Sradh of her husband. She also at this time agreed not to live at the Harrischandrapur house but to stay at Baraduari.
5. The payment of Rs. 12,000 in monthly instalments was, according to her, regular in beginning, irregular afterwards and finally stopped. She took proceedings under Regn. 8 of 1819 to recover the arrear dues, but the Collector on the objections of Ram Kinkar held that those proceedings were not maintainable in law. Ram Kinkar took advantage of this, took up the position that she was bound to pay half the costs of a heavy litigation in which he and Tarun Ram were parties defendants, compelled her to execute promissory notes for the same in his favour and finally deducted the same gradually from the munafa of Rupees 12,000 payable to her. She had to submit to all this because she was then under the clutches of Ram Kinkar, but these proceedings on the part of Ram Kinkar raised her suspicions about her husband's documents executed in favour of the latter in 1320 (1913) and left her with the feeling that she was being cheated of her just dues. She moved from Baraduari to Maldah town in October 1926 (Kartic 1333), rented a house there, saw her lawyer Mr. Krishna Kamal Goswami, wrote letters to Ramani Kanta Chakravarty, ex-manager of the Harris-chandrapur estate, to Jadunath Ghosh, another officer, to Bhagabati Charan Kabiraj, who is said to have treated her husband for some time for insanity, and sent a messenger to another ex-officer, Hiranya. Ramani replied to her letter and Jadu Nath and Bhagabati Kaviraj saw her. Then she sent for the retained pleaders of estate, Mr. Kalipada Chatterjee and Rai Bahadur Panchanan Majumdar. The former did not see her but the latter did. Rai Bahadur Panchanan admitted before her (which the Rai Bahadur denies in his evidence) that the documents had been taken from her husband to prevent him from dealing with his properties in a whimsical fashion, but they represented paper transactions. He said that he would intervene with Ram Kinkar, but some time later on said that he had seen Ram Kinkar but would do nothing in the line of a reasonable compromise. She thereupon filed this suit.
6. The oral evidence in the case is conflicting but a mass of documentary evidence has been produced by the defendant to meet the plaintiff's case. The whole lot had been attacked in the lower Court by the plaintiff as being forgeries and the same attack has been made before us by her learned advocate. Having regard to the nature of the documentary evidence produced by the defendant which covers the period from 1316 to Bhadra 1326 (April 1909 to September 1919), and the definite case of the plaintiff that her husband became a violent lunatic from the end of 1315 or beginning of 1316 and continued in the same state till his death in November 1919, the appellant's advocate must of necessity go to the length of attacking all the said documents, every one of them, as forgeries. With these preliminary remarks we proceed to consider the evidence in some detail.
7. The four documents, evidencing the three transfers were all executed on 12th Bysack 1320 (25th April 1913). They were all executed at the Gosaintuli house, a rented house of Harrischandrapur Estate (Barataraf) at Maldah. The evidence establishes that shortly before this Tarun Ram was living at Calcutta with one servant, in a hotel there. He came to Maldah with his servant in Bysack 1320 and stayed with the estate pleader Mr. Kalipada Chatterjee. The evidence is not precise as to the exact date of his arrival at Maldah but it is clear that he arrived there about a few days before the documents were executed, i.e., about 6th or 7th or 8th Bysack. He stayed at Mr. Kalipada Chatterjee's house all the time till the execution of the documents, he going over to the Gossaintuli house only for executing the same. Ram Kinkar had come down from Harrischandrapur a day or two after Tarun Ram's arrival at Maldah and was staying at the Gossaintuli house. The evidence of Mr. Kalipada Chatterjee is that Tarun Ram had with him, when he came to his house, some sort of a draft of the patni potta and may be of the deed of gift. Tarun Ram showed him the same and he went with it to Ram Kinkar. The draft of the kabuliyat was prepared at the instance of Ram Kinkar by another estate pleader Mr. Kali Prosanna Shaha who has also been examined. Mr. Kalipada Chatterjee prepared the draft of the deed of release and settled all the four drafts in consultation with the parties. The deeds were all executed on the same date in the presence of many persons. Mr. Kali Prosanna Shaha, Mr. Kalipada Chatterjee, two Ranjit Singhas, Umesh Chandra Singh, the last three being officers of the estate were the common attesting witnesses, and Jahnavi Charan Ghosh was the writer of some and attesting witness to others. They were registered two days later on commission, Mr. Panchanan Mazumdar identifying Tarun Ram.
8. The direct evidence of benami is given by the plaintiff's witness Hiranya Mohan Ganguly. (1,119). His evidence is that Ram Kinkar ultimately took into serious consideration the declarations often made by Tarun Ram that he would settle his properties with Mohini Mohan Misra and Hari Mohan Misra, the two proprietors of the Chota Taraf who were on terms of enmity with the Barataraf. One day he called his principal officers and well - wishers in consultation and the question of benami was settled but the details were left over to be settled in consultation with the lawyers of the estate. A conference with the three lawyers of the estate, Mr. Kalipada Chatterjee, Mr. Kali Prosanna Shaha and Mr. Panchanan Mazumdar, was held at the end of the Bengalee year 1319 (about the middle of April 1912) and the plan of having a patni patta and a deed of gift from Tarun Ram and a corresponding patni kabuliyat and a deed of release by Ram Kinkar and fixed upon.
9. The witness speaks of his presence at tooth the conferences and at the time of the execution of the documents. He was a comparatively new man in the employ of the estate, and was according to himself a muffasil tahsildar in charge of a small tashil. His evidence in all material particulars has been contradicted by the aforesaid three lawyers and does not inspire confidence. Though he says he was present at the execution his name does not appear as an attesting witness. We have grave doubts if he was present at all at the so-called conferences and at the time of execution. We accordingly entirely discard this evidence. The evidence of Ram Kinkar is unreal in many parts and besides he is highly interested in the result of the litigation. Umesh Singh is an old officer of his and is still serving him. We do not accordingly consider it safe to go upon the evidence of Ram Kinkar and Umesh Singh, but do not see why the evidence of the three pleaders should be discarded. The drafts of the documents have not been produced. Ordinarily that would have been a material fact for consideration, but seeing that the transactions are of the year 1913 and that there is a mass of documentary evidence, which, if genuine, would destroy completely the case of benami, we do not attach much importance to the absence of the drafts. The oral evidence bearing upon the question of mental capacity of Tarun Ram adduced by the plaintiff consists of the plaintiff's evidence, and the evidence of Raja Sasi Sekharreswara Roy, of Hiranya Mohan Ganguly, Dr. Jogesh Chandra Ghosh and of Dr. Pramatha Nath Dey. These are her principal witnesses on whom reliance has been placed before us by the appellant's advocate. There are some more witnesses examined on the plaintiff's behalf who also speak to Tarun Ram's mental condition but no specific reference to their evidence was made before us by the learned advocate for the appellant. Their evidence is either of a general nature or more or less tend to corroborate some of the incidents spoken to by the plaintiff and her aforesaid three witnesses.
10. We have already given a short summary of the plaintiff's evidence. Her husband's trouble was due to his excessive ganja smoking. He incurred the habit in 1906-07. She says that in 1315 (1908-09) she went to her father's place at Tapan Bajitpore, to attend the Upanayan ceremony of her youngest brother, leaving her husband at Harrischandrapore. She stayed there for 2 months and while she was there she heard that her husband had gone off his head. She came back and found her husband totally mad and at times very violent and had to be bound by force. Ultimately a Kabiraj Bhagabati Charan (now dead) was called in who treated him for a short period. This is all the medical treatment her husband had. No other Doctor or Kaviraj was ever called in, although according to her, her husband continued to be a violent lunatic for about 10 or 11 years till his death. In October 1911 (Aswin 1318) her husband went to Benares accompanied by an officer, Jadunath Ghosh, a cook and a servant, she herself keeping back. After return from Benares at the end of the same year there was a fight between her husband and Ram Kinkar, and it was considered by the relations not safe to keep her husband in the family house. She and her husband accompanied by some relations shifted to her father's place at Tapan Bajitpore and after staying there for a few months travelled to Benares, where they put up at Anandanjee's house. There, an agent of the Chota Taraf paid a visit with a view to get his property, and at this stay at Benares her husband saw Raja Sasi Sekhareswara Roy of Taherpore accompanied by Pundit Kashi Natt Sarbabhoom. She left her husband as Benares and returned to Harrischadrapore where she told Ram Kinkar about the visit of the agent of the Chota Taraf but the latter assured her that there was no reason to be afraid of the Chota Taraf people, a any deed by Tarun Ram would be adjudgei void, he being a lunatic. She again joined her husband at Benares in about July 1912 and they both stayed there for about two months more. On return to Harrischandrapore she stayed there till Aswin 1320 (September 1913), but her husband after staying there for 4 or 5 days, went to her father's place and from there to Calcutta accompanied by a servant only. We have the evidence that at Calcutta he lived in a hotel. The salient facts to be noticed in her evidence are that there was practically no medical treatment. According to her a Kabiraj treated her husband for insanity, but only for a short time. This is remarkable seeing that the family was well off. The second thing is that although according to her evidence her husband was badly in need of being looked after, she on many occasions lived at a great distance from him, leaving him in charge of a cook and a servant. The third thing is that although according to her he frequently became violent and had to be tied down he was allowed to move about from place to place and in railway trains just like a normal person accompanied by a personal servant, and to stay abroad for appreciable lengths of time with a personal servant only and at times in hotels.
11. The two Doctors examined on behalf of the plaintiff, Dr. Ghosh, and Dr. Dey, never treated Tarun Ram or kept him under such observations as a medical man would. They saw him casually for very short times and observed some abnormal conditions in him. He was on some occasions naked, on some occasions in a silent mood, sometimes he spat on people and sometimes violently quarrelled with them and on one occasion thrashed a maidservant rather severely. Raja Sashisekhar saw him once for a very short time in his Benares house. The Raja's memory is very vague, as naturally it must be at this distance of time. Tarun Ram had gone to him accompanied by a Pundit to propose business with him. The Pundit was Kasi Nath Sarbabhoom. The visit is quite consistent with the action of a sane man. Moreover, if Tarun Ram's condition was such as is spoken to by the plaintiff, Sarbabhoom would not have certainly taken him to the Raja, and if any proposal for settling his property was considered necessary Sarbabhoom would have in that case alone negotiated with the Raja, leaving Tarun Ram safe at home. The point in the Raja's evidence is that at the end of the interview Tarun Ram insisted on, the Raja witnessing his dance threw off his clothes and began dancing. This was certainly abnormal. A pointed question was however put to the Raja by the plaintiff as to whether he considered. Tarun Ram to be a lunatic, but the Raja could not answer the same in the affirmative. Mr. Panchanon Majumdar also spoke to one instance in which Tarun Ram behaved in an abnormal fashion. The evidence given by the two Doctors, the Raja and Mr. Panchanan Mazumdar, establishes-the fact that at times Tarun Ram behaved in an abnormal way but taking the whole evidence on the record into consideration we cannot hold that the plaintiff has established that her husband was at any time an insane man. He was addicted to ganja and the incidents spoken to by these witnesses may have happened when he was under the influence of ganja. Lyons in. his 'Medical Jurisprudence for India' describes the effect of ganja in these terms:
Hemp acts on the brain, causing usually excitement, followed by narcotism. During the stage of excitement, the individual is the subject of hallucinations, usually but not invariably, of the pleasurable and often of a sexual character. In this stage the patient may show no outward indication of excitement or he may be constantly laughing, singing or talking or furiously delirious (p. 696, Edn. 8); if the drug is taken in small doses the effect produced is slight, consisting merely; of some pleasurable stimulation of the higher centres. This in no way affects the individual's appreciation of the consequences of his acts. In large doses hemp, like datura, causes a temporary insanity associated with hallucinations under the influence of which a person may be violent even to the extent of committing homicide (p.414, Edn. 8).
12. We will now deal with the documentary, evidence. On the plaintiff's side few documents have been exhibited and only one of them has been printed (Ex. 1; 11-240). It is a letter written to the plaintiff by Ramani Kanta Chakrabarty after she bad removed herself to Maldahin 1926. Ramani Kanta was one of the principal offifcers of the estate at the time when the afovesaiid documents, the patni patta, etc. were executed. This letter was in reply to the plaintiff's letter about which she has spoken to in her plaint and in her ^position. The writer is dead, but Ms statements do not come within any of the clauses of Section 32, Evidence Act. The document is not accordingly admissible in evidence. Moreover its value is very little seeing that at the time controversy between parties had already begun. On the side of the defendant more than two hundred documents have been exhibited. They may be classified as follows : (i) 43 letters written by Tarun Ram covering a period from 1910 to 6th September 1919 some of them being postcards, (ii) about fifty five rent receipts for patni rent signed by Tarun Ram, and some postal acknowledgments of the receipt of such rent also signed by him, supported by chalans and entries in the account books of Ram Kinkar. (iii) Documents showing payment to Tarun Ram of a considerable portion of the selami of Rs. 25,000 reserved in the patni potta. (iv) Proceedings in connexion with the pro. bate of the will of one Raj Kumar Singh, (v) Proceedings of a suit instituted by the Chota Taraf against Tarun Ram and Ram Kinkar. (vi) Documents showing business dealings by Tarun Ram, and (vii) letters from the plaintiff to Ram Kinkar Roy and receipts of patni rent granted by her.
13. The first question we have to decide is whether the letters purporting to be written by Tarun Ram are forgeries or not. One inherent improbability against the suggestion that they are forgeries is their great number. A person intending to support his case by forged documents would not ordinarily produce a great number of suspicious documents, for thereby he would be exposing himself to a greater risk of discovery. The second thing to be observed is that these letters which are of old dates deal with a variety of matters, family matters and business matters, and give minute details, which have been proved to be true to a great part by the statements made by the plaintiff and her witnesses in cross-examination. It would be very difficult at such distance of time for a forger to guard himself in respect of minute details. He would naturally avoid stating such details in forged documents. Some of the matters dealt with in these letters state facts which are of a trivial nature and yet is they are correct and corroborated by the plaintiff herself or her witnesses or by documents. To take some instances: In his letter Ex. D-15 (11-52)(a postcard) Tarun Ram writes to Ram Kinkar from Benares on 19th Pous 1321 (3rd January 1915) informing him that his cook Shibaram has been attacked with smallpox. Kasi Nath Sarbabhoom admits in his cross-examination at 59 (1-30) that this was fact. In another letter also from Benares he speaks of his servant Anadi's illness Ex. D.35 (11-30) and the plaintiff admits that they had a servant named Anadi (1, 89 1-12). There are many such instances of corroboration of the small details mentioned in these letters. None of the witnesses examined on behalf of the plaintiff has come out with a straight and bold denial of the handwriting or signature of Tarun Ram in these letters. The plaintiff feigns ignorance of her husband's handwriting, stating, and we think falsely, that she never saw her husband write. Her witness Hiranya admits the general similarity of the writing with Tarun Ram's handwriting but refers to the dissimilarity of an alphabet here and there. Forty two of these letters had been filed in Court by the defendant in March, April and May 1929, shortly after he had filed his written statement, and only one, Ex. D-27 (11-66 date wrongly printed) was filed in February 1930 with an explanation that it could not be traced earlier, being in a file in the Sumer Sherista. Twenty of these letters were filed at a time when the plaintiff's application for a receiver was pending consideration and were made grounds in opposition. The plaintiff and his lawyers must have realized the importance of these letters and still no steps were taken during the next five years while the suit was pending in the lower Court to have them examined by a handwriting expert.
14. The only comment that the learned advocate for the appellant makes on them is that the manner of their discovery is suspicious and relevant evidence has been withheld by the defendant. For this purpose he has drawn our attention to the evidence of the defendant at p.194, of the Manager Janaki Nath Roy at page 286, of the clerk of the Sumer Sherista Janaki Nath Chakravarty at p. 326, and has commented on the absence of Ajodhya, the record keeper, from the witness-box. These witnesses in our judgment give a consistent and probable story. On coming to know of the plaintiff's suit the defendant asked his Manager in August or September 1928 (Bhadra 1335) to see if there were any letters of Tarun Ram in the Sherista. The Manager ordered a search by Janaki Chakravarty, he himself also taking part. Bundles of old letters which were in the record-room were brought out by Ajodhya and these bundles were examined by him, the Manager and the clerk Janaki and from them Tarun Ram's letters were taken out. The part played by Ajodhya was insignificant. He simply brought heaps of papers from the record room and placed them before the Manager. He did not know what these heaps contained. He acted the part of a carrier only and his absence from the witness-box in our judgment is not a material defect. The suggestion that all of them had been forged between the date of the suit and their filing in Court cannot bear scrutiny, for sixteen of them are postcards, the old small ones, which had long before the suit been withdrawn by Government. They, as also many postal envelopes, bear the postal seals of the place where they were posted and also of the place of destination. For these reasons we have no hesitation in agreeing with the Subordinate Judge that these letters are all genuine. They prove that Tarun Ram was a perfectly sane man all along till his death. Some of these letters contain demands from his brother of the patni rent and certain important admissions by him pointing to the fact that the four documents executed on 25th April 1913 (Ex. G, G(1) H and I) represented genuine transactions.
15. Many of the reasons we have stated above for holding the letters to be genuine apply to the rent receipts and postal acknowledgments of the receipt of insured covers containing money also signed by Tarun Ram. They show that Tarun Ram received money from Ram Kinkar as patni rent almost regularly. During his lifetime about 78 monthly instalments of patni rent were payable to him and the rent receipts challans and these postal acknowledgments cover almost all the instalments so payable. After Tarun Ram's death the plaintiff herself received without protest money from Ram Kinkar as part of patni rent and took proceedings against him for realizing the same, and only when the defendant made high-handedly large deductions from the patni rent for the costs of the Chota Taraf's suit, deductions which cannot be justified on the evidence, that she felt exasperated, went to Maldah, and thereafter filed this suit. Her plea that she was under the thumb of Ram Kinkar and so could do nothing before, cannot bear scrutiny. She had her two sons-in-law living with her, had her own officer and had a pleader at Maldah. Mr. Krishna Kamal Goswami, a scion of the family of her father's spiritual preceptor, with whom her eldest son-in-law was in constant touch in connexion with her business affairs. We further hold that the selami of Rs. 25,000 was actually paid to Tarun Ram by Ram Kinkar. The evidence on this point, which we believe, is that a small portion of it was paid at the time of the execution of the patni patta and for the rest Ram Kinkar executed first a promissory note and later on 22nd July 1913 a registered bond in favour of Tarun Ram (Ex. J-11. 141) and on further insistence from the latter, as is evidenced by his letter dated 9th November 1913, Ex. D-12 (11, 50) borrowed Rs. 15,000 from the Faridpore Loan Office and paid up the balance of the selami (Ex. O, 11, 162, mortgage in favour of Faridpur Loan Office dated 24th January 1914; endorsement on bond dated 19th Magh 1320, there is a misprint in the record, Ex. J-11, 143, Ex. U-13,11-150-152, Rokar entry dated 1st February 1914). The Government currency notes received by Ram Kinkar from the Faridpur Loan Office for Rs. 15,000 together with an additional sum of Rs. 3000 was paid to Tarun Ram. Probably with this money and from what he could save from the patni rent received by him Tarun Ram started a money-lending business. He purchased properties in execution of decrees against his debtors and sold them to others by registered documents : Ex. D-17; 11, 76, Ex. N2 to N4; 11, 23, 24; Ex. Q, Q1, Q2, Q3, 11, 181 to 187. For conducting his business he executed a power of attorney in favour of Balabhadra Misra and Umesh Chandra Sinha as late as 12th August 1916 (Ex. CC; 11-178).
16. We will now notice how others dealt with Tarun Ram. Kashi Nath Sarbabhoom who now comes to depose on behalf of the plaintiff and supports her case that Tarun Ram was insane from at least 1911 (1318) himself wrote two letters to Tarun Ram from Benares in February 1912, Magh 1318 (Exs. D-56 and D.57, 11, 88 and 89) in which he asked the latter's instructions regarding the repairs of the Benares house and regarding the trouble he had with the neighbouring owner regarding some windows. Sarbabhoom admits these letters to be genuine. (1,62). (They and the covers were marked Exs. A to A-5 before the Commissioner.) The contents of these letters indicate unequivocably that Tarun Ram was regarded by Sarbabhoom as perfectly sane and quite capable then of managing business affairs. One Raj Kumar Sing, a wealthy neighbour, executed a will in April 1909 (20th Bysack 1316) and died in August following. He appointed Tarun Ram and his brother Ram Kinkar as executors. He would never have appointed Tarun Ram an executor if he had then shown signs of insanity. According to the plaintiff's evidence her husband had become a lunatic then. On 21st December 1909, (Pous 1316) Ram Kinkar and Tarun Ram filed a joint application for probate (Ex. K, 11-20). In Ex. D 46, (11, 32) dated 30th September 1910 and Ex. D 39, dated 28th September 1917 (11-42), Tarun Ram indicates what interest he was taking in Raj Kumar Singh's affairs. It also appears that about this time Tarun Ram was taking keen interest in the management of the estate and keeping himself well informed about its affairs from places where he was temporarily residing (Ex. D 35, 11-30, Ex. D 26. 11-40, Ex. D 39, 11-42; Ex. D 43, 11-44; Ex. D 7, 11.45, etc). Abdul Gani, a tenant, was treating him as Karta and in respect of a proposed settlement of some lands detailed correspondence passed between them. The documents bearing upon this settlement are Ex. D 52, (11-27), Ex. D 46, (11-32); D 50, (11-38); Ex. T, (11-78). On 18th February 1918 Mohini Mohan Misra and others, the Chota Taraf people, filed a suit for redemption against Tarun Ram and his brother (Ex. N 5, 11-190).
17.That was a big suit in which the right of Tarun Ram and his brother to possess the bulk of the Harrischandrapore estate was at stake. There was admittedly no love lost between them and Chota Taraf people, who were men of the locality. The matter ultimately went up to the Privy Council and the out pocket cost of the defendants of that suit was something like Rs. 47,000rder Eminent lawyers of Calcutta were consulted by the parties from the beginning, Sir Eash Behary Ghose by the plaintiffs of that suit and Dr. Dwarka Nath Mitter (later Mitter J.) by the defendants. The plaintiffs of that suit sued Tarun Ram as a sane man, for they did not have a guardian ad litem appointed for him. If Tarun Ram was then insane, surely the Chota Taraf people, the plaintiffs of that suit, would have known that fact, and would have taken particular care to have him properly represented through a guardian ad litem. They could not with their eyes open have risked a decree which would have been a nullity so far as Tarun Rani was concerned if he was then actually insane. Tarun appeared in that suit as a sane defendant would and filed a written statement with his brother. The evidence is that after the filing of the suit he was residing at Calcutta and some of his letters show that he was making tadbir for the suit (Ex. D 20, 11-56, Ex. D 21,11.58; Ex. D 23, 11-60; Ex. D 24, 11-62).
18. We do not feel it necessary to examine in detail the other documentary evidence on the record. We feel convinced that Tarun Ram was not insane, incapable in law in executing Exs. G and H, the patni patta and the deed of gift, and these deeds represented genuine transactions. There is no tangible evidence that the net income of properties let out in patni was Rs. 70,000 to Rs. 75,000 a year in 1912 or 1913, that is, in Tarun Eam's share Rs. 35,000 to Rs. 37,500rder The evidence of the plaintiff on this point is hearsay and worthless and the evidence of Hiranya equally worthless. At the plaintiff's eleventh hour requisition the defendant produced in Court on 20th June 1934 all the papers, collection and account papers, 38 items in all, of the year 1320; but the plaintiff thereafter did not care to look into them or exhibit any one of them. That requisition of the plaintiff which was made on 13th June 1934 was a dodge, for if the defendant had failed within that short time to produce these old papers the plain, tiff would have charged the defendant with suppression of evidence bearing upon the question of the income of the estate about the time of the patni and would have asked the Court to accept the worthless evidence relating to the income of the estate produced by her. In fact as the list of documents filed by the defendant on 20th June 1934 is not included in the printed record, Dr. Basak appearing for the appellant made that comment in his opening but after Mr. Gupta appearing for the respondent had pointed out to us from the original records as to how the matter stood. Dr. Basak in his final reply simply dropped the matter. For the reasons stated above, we hold that the learned Subordinate Judge has come to the right conclusion and that this appeal must be dismissed, and the decree of the lower Court, subject to a modification about costs, must be confirmed.
19. We have only to consider the question of costs. The defendant deducted about Rs. 26,000 from the patni rent on the plea that it was payable by the plaintiff on account of the costs of the Chota Taraf people's redemption suit. To justify the deduction he set up an agreement with Tarun Ram. This case is falsified by two of Tarun Ram's letters which the defendant himself has produced (Ex. D 25, 11-60; Ex. D 24, 11.62). He further stated that on the plaintiff raising objections to the deductions he obtained the opinion of Dr. Dwarka Nath Mitter and on that the plaintiff consented to the deductions. This opinion of Dr. Mitter has not been produced and in our judgment this part of the defendant's case also rests on fiction. If the defendant had not unjustly made these heavy deductions the suit would probably not have been instituted at all. His attempt to cheat the plaintiff is responsible for the suit. For these reasons, although we dismiss the appeal and the suit, we do order each party to bear their respective costs both of the Court below and of this Court. In dismissing the appeal we express the hope that in future the defendant would treat his widowed sister-in-law fairly and squarely and would not take to questionable devices to deprive her of her just dues.