Nasim Ali, J.
1. This is an appeal by the defendant in a suit for a declaration that the darpatni patta granted by the plaintiff to the defendant is invalid and inoperative and for a permanent injunction restraining the defendant from taking possession of the property leased out by the darpatni patta. The plaintiff's case briefly stated is as follows: Jadab Chandra Chowdhuri, the plaintiff's husband, died in 1323 B.S. leaving two widows, the plaintiff and Indureka and a daughter by Indurekha who has been married to one Ghanashyam. Indu Rekha subsequently died, consequently the plaintiff became the 16 annas malik of the property left by her husband. One of the properties left by her husband is Jalkar which was acquired by the plaintiff's husband on payment of Rs. 1,000 as Nazar on an annual rental of Rs. 180. After the death of the plaintiff's husband the plaintiff and her co-wife Indurekha were in possession of all the properties left by her husband. Ghanashyam managed these properties after the death of the plaintiffs husband. After the death of Indurekha in 1332 B.S. Ghanashyam went to Gaya to perform her sradh. At that time the plaintiff was in her father's house. During the absence of Ghanashyam the defendant, who is a cousin of her late husband, proposed to the plaintiff that he should be made her Ammukhtear to realize the income from the Jalkar.
2. The plaintiff at first suggested that the matter should be postponed till the return of Ghanashyam as her father was insane and unfit to advise her in the matter. The defendant however told the plaintiff that the matter did not admit of any delay and that there was no harm in giving him an Ammukhtearnama as she would thereby get rents without any trouble. The plaintiff being an ignorant, illiterate pardanashin womam ultimately agreed to the proposal. The defendant thereupon brought the plaintiff to Dinajpur on the second Aghrayan and took her to the house of a stranger, produced a document previously prepared and took her thumb impression thereon. The plaintiff did not receive any consideration for the lease. The defendant then took her back to her father's village and left her at her father's house. The plaintiff's son-in-law Ghanashyam, on his return from Gaya, came to see her and the plaintiff related the whole thing to him. Thereupon he became anxious to know the nature of the document and went to the defendant and demanded to see the document. The defendant however refused to shew him the document. Thereafter Ghanashyam came to Dinajpur and took a copy of the document from the Registrar's office. The plaintiff then came to know that the defendant, in order to get the whole of her valuable property, had practised a fraud upon her and had got a darpatni lease fraudulently executed by her.
3. The plaintiff never agreed to settle the Jalkar in Darpatni right with the defendant at an annual rental of Rs. 200 with a selami of Rs. 425. The darpatni patta was never read over and explained to her. The plaintiff had not any opportunity of consulting her well wishers and near relations. She did not receive a single pice as Nazar for the darpatni lease. The defendant taking advantage of the ignorance and helpless condition of the plaintiff got fraudulently the darpatni lease registered by undue influence. The recitals in the patta about the plaintiff's ill-feeling with her son-in-law and about her being deprived of the income of her husband's property left by her husband were falsely made in order to secure the darpatni lease of the plaintiff's valuable property at a nominal rent. The' darpatni lease is therefore absolutely void and the plaintiff is in possession of the property as before. The plaintiff is therefore entitled to get a declaration from the Court that the darpatni patta is null and void.
4. The defence of the defendant in substance is that the plaintiff has executed the darpatni of her own free will on receipt of a selami of Rs. 425, that the darpatni lease was for a consideration and was not obtained by fraud, misrepresentation or undue influence, that as a matter of fact the plaintiff on the death of her husband lived for some time in her husband's house and during that time Ghanashyam gradually got hold of her entire property left by her husband, and in 1316 B.S. during the minority of the plaintiff got certain kobalas of certain Jotee executed in favour of his son, that the plaintiff being unable to stay on there on account of the oppressions of Ghanashyam and her mother-in-law Indurekha left her husband's house and came to live at her father's house, that Ghanashyam never gave anything to the plaintiff for her maintenance. It was alleged by the defendant that as the plaintiff was getting no income from her husband's property, and as she was completely dispossessed of her husband's estate, she of her own accord, in consultation with her father and near relations, granted the darpattani lease, and that Ghanashyam finding that the darpatni lease would be binding against his sons, that is the reversionary heirs, had got the suit instituted. The defendant also pleaded that the selami mentioned in the darpatni patta was paid to the plaintiff before the Registrar and that the document was read over and explained to her before execution.
5. The learned Munsif who tried the suit found that at the time of the lease the plaintiff was not on good terms with Ghanashyam, and that she was really kept out of possession of the property left by her husband, that Bhabananda the plaintiff's father, was insane, and that the document was never explained to her before execution. The learned Munsif also found that the plaintiff did not know the difference between a darpatni lease and an ammukhtearnama and that it was doubtful whether the selami money which was brought before the Sub-Registrar and paid to her in the presence of the Sub-Registrar actually remained with her. The learned Munsif further held that even if the consideration had been paid it was an unfair bargain. He accordingly decreed the suit.
6. On appeal by the defendant to the lower appellate Court the learned Judge has found that there was no talk about an ammukhtearnama, that no influence was acquired or abused by the defendant Purna, that no confidence was reposed in or betrayed by him, that the plaintiff contracted to grant the defendant a darpatni lease and that she accordingly executed the patta with full knowledge and understanding of what she was about to do and that she had it registered. The learned Judge has further found that she was not living in her husband's house but was living with her father who was maintaining her with great difficulty and that it was natural for the plaintiff and her father to dispose of some property to relieve the plaintiff from the distress to a certain extent to fight Ghanashyam who had usurped the whole inheritance. The learned Judge was also of opinion that though there was no direct evidence that the plaintiff had independent and disinterested advice in the matter, she had her father, brother and intelligent neighbours to assist her and as she was in need of money she was willing to part with a portion of the property to get some money in cash and something like an annuity. The learned Judge however, was not satisfied that the bargain was fair. He was also of opinion that it was the duty of the defendant to disclose the real income of the property at the time when the terms of the lease were settled. In this view of the matter the learned Judge allowed the appeal in part and passed the following decree:
That On the plaintiff's paying into the lower Court to the credit of the defendant Rs. 425 within a month from date with interest at 6 percent per annum from '2nd Aghrayan 1332 R S. to the date of the payment the decree will stand good. In default it will be regarded as reversed and the suit dismissed. As both sides are to blame there will be no costs to either side in any Court.
7. Hence the present appeal by the defendant. There is however no cross-objection by the plaintiff. The learned advocate for the appellant contends that on the facts found by the lower appellate Court it should have dismissed the plaintiff's suit. In my judgment this contention must prevail. From what has been stated above it is clear that the allegations in the plaint on which the plaintiff claimed relief had been disbelieved by the lower appellate Court. The effect of the finding of the lower appellate Court is that the plaintiff understood the transaction and that she had full knowledge of the nature and effect of the document she executed in favour of the defendant. In other words the judgment of the lower appellate Court clearly shows that the disposition made by the plaintiff was substantially understood and that it was really her mental act as the execution of the document was her physical act. It was contended by the learned advocate for the respondent on the authority of the decision of the Judicial Committee in Tara Kumari v. Chandra Mauleshwar Proshad Singh 1931 PC 303, that it was the duty of the defendant to disclose to the plaintiff the real income of the property at the time when the selami and the rent were settled and if knowledge had been kept from her by the defendant the transaction should not stand as equity and good conscience had always been the pillars of administration of justice in India. The learned advocate for the respondent drew my attention to the following passage in the above decision:
If knowledge had been kept from her by the creditor, if there was any ground for suspicion that he was over-reaching her, if she had no independent advice, and the relations between them were such as to suggest that they were not on equal terms, it would be impossible for a Court to affirm with any certainty that had she known the full truth, as she was entitled to know it, she would have completed the transaction. It would only be upon this hypothesis that the lady could be held bound by the mortgages though not by the accounts. It is no doubt impossible to lay down any hard and fast rule for such cases, each must depend upon its own facts and the dividing line may often be difficult to draw. There is no doubt, their Lordships think as to the principle to be applied' They are not marely deductions from the law as to undue influence which finds a place in Section 16, Contract Act, as has been suggested by counsel for the respondent. They are founded upon the wider basis of equity and good conscience which have always been pillars of the administration of justice in India.
8. The facts of the case which was he fore their Lordships would go to show that the person who obtained the document (that is the mortgages) from the pardanashin lady was her creditor, that the accounts upon which the mortgage was based had not been explained to her and that various items were included in the mortgage for which the lady was not at all liable. In this case it was suggested by the plaintiff that the defendant was a relation of the plaintiff and that taking advantage of her relationship the defendant went to the plaintiff and proposed to save her from the clutches of Ghanashyam and as the plaintiff. I had no good feeling towards Ghanashyam she readily accepted the proposal. The learned Judge however has recorded the following finding in this connexion;
In 1314 B.S. or thereabout Jadab and his cousin. Purna, who were joint in property, divided the joint property. Thereafter and before Jadab s death there were disputes among them. Some time before his death Jadab removed from the ancestral home in Bonhara to Balahar where Iudurekha's father lived. Sarojini was about 23-27 years of age at the time of the trial. It is her deposition that Purna did not look after her after her husband's heath. She was a mere child when Purna and Jadab separated. It does not appear that there was any association between her and Purna and they knew one another by appearance before the proposal about the disputed transaction.
9. From this finding of the learned Judge it is clear that the relationship of the defendant with the plaintiff was not such as would enable him to dominate the will of the plaintiff. Under such circumstances it cannot be said that the relation between the parties at the time of the transaction was such as to suggest that they were not on equal term It was however contended by the learned advocate for the respondent that in this case the plaintiff had no independent advice. The learned Judge has however negatived the plaintiff's case on this point. The following observations were made by their Lordships of the Judicial Committee in Kali Baksh Singh v. Ram Gopal Singh (1913) 36 All 81, in this connexion:
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 solved 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. Their Lordships, as already mentioned, have fully in view the fact that the lady was a pardanashin lady, but the evidence as to her strength of will and business capacity, and the fact that the deed as granted is not in the circumstances of her life in any way an unnatural disposition of part of her property, go far, taken together with the evidence in this case, to convince them that the deed was granted by her as the expression of her deliberate mind and apart from any undue influence exerted upon it In short their Lordships view is that if independent outside advice which is an essentially different thing from independent outside control had been obtained the lady would have acted just as she did. Much as their Lordships support and approve of the protection given by law to a pardanashin lady they cannot transmute such a legal protection into a legal disability.
10. In this case the learned Judge has found that the plaintiff's deposition shows that she is intelligent and it was not difficult for her to understand the transaction and the nature and effect of the transaction upon her interest in the property. Further as has already been pointed out she had her father, brother and intelligent neighbours to assist her in the matter. There is therefore no force in this contention of the learned advocate for the respondent. It was next urged that the learned Judge has found that the bargain was not a fair bargain and consequently on equitable rounds the transaction should not stand. It appears however that this ground was not made a specific ground of attack in the plaint. No specific issue, was joined on this point though if; appears to have been argued in the Courts below. The learned Judge's finding on this point is as follows:
I am however not satisfied that the bargain was fair. According to the collection papers produced by Ghauashyam the aggregate of the rentals payable in 1332 B.S. by the tenants in the fishery was Rs. 624-the amount realized in 1331 B.S. was Rs. 324-and that in 1332 B.S. was Rs. 290. Much reliance cannot be placed upon these papers as no tenant was cited to corroborate them and in his deposition Ghanashyam did not say anything more about them except that those papers wore in his hand-writing. But it is in defendant's deposition that according to the enquiry made by him the profits from the fishery amounted to Rs. 300 to Rs. 350 after deducting the overhead rent. Making allowance for the collection charges at 10 per cent the net profit would come up to Rs. 270 to Rs. 315 a year. A sum of Rs. 425 as premium and an annuity of Rs. 20 is a very inadequate consideration for the transfer of such a property even when the transferor is out of possession.
11. Now it appears that this property was acquired by the plaintiff's husband on payment of selami of Es. 1,000. The selami paid for the darpatni was Es. 425. The capitalised value of the annuity of Es. 20 would be about Es.400. Consequently she was getting about Es. 825 by this transaction. Further she was a Hindu widow, and the lessee evidently took some risk in taking a permanent lease from her. She was also out of possession. In these circumstances it cannot be said that the bargain was an unconscionable bargain particularly in view of the fact that she was willing to sell this fishery to one Hazi Mahammad and she agreed to an offer of Es. 300 as price. In fact there is no evidence or suggestion anywhere in this case to show that any other person was willing to offer more favourable terms than what the defendant did. If she really wanted to attack this transaction on the ground that even in the circumstances which then existed the transaction was not a fair transaction at all she ought to have made a specific case in the plaint and ought to have joined an issue on the point in order to [enable the defendant to show that the [transaction was not an unfair one. Whether the transaction was one that should the set aside as inequitable would depend upon the circumstances at the time when it was made and not upon subsequent events: see Ganga Baksh v. Jagat Bahadur Singh (1898) 23 Gal 15. In my judgment the lower appellate Court was not justified in rejecting practically the whole of the plaintiff's case as made out in the plaint and then in proceeding to give her some relief on equitable grounds without taking into consideration the risk which the defendant was taking in this transaction.
12. It was also urged by the learned advocate for the respondent that it was the duty of the respondent to disclose to the plaintiff the real income of the fishery at the time when the darpatni patta was executed. The law does not lay down any statutory duty on the lessee. It was however argued that as the plaintiff was a pardanashin lady it was the duty of the defendant to disclose the facts to her, but it would appear from the deposition of the plaintiff herself that she was fully aware of the income of the property at the time she agreed to grant the darpatni lease. Consequently it cannot be said that the defendant had taken any undue advantage of the position of the plaintiff. In these circumstances there cannot be any doubt that there was no fraud or misrepresentation or undue influence in this case. The learned Judge's own finding would go to show that the defendant had succeeded in showing that the plaintiff was-fully aware of the nature of the transaction, that she received the selami for the lease, and that her deposition shows that she had no regard for truth. The learned Judge has further observed:
Her going over to Ghanashyam's side within a short time after the completion of the deed is not difficult to understand. Ghanashyam deposed that after his return from Gaya he paid the plaintiff Rs. 100 and gave her some cloth,. That was sufficient inducement to her as she has no regard for truth and had nothing to lose, but had something to gain by changing sides. Ghanashyam was in urgent need of propitiating the plaintiff, for the patta questioned the legality of the purchases by his sons also.
13. It appears to me that this is really Ghanashyam who is fighting this case in the name of the plaintiff. In these circumstances this is not a fit case in which it can be said that the transaction is an unconscionable one, or that the defendant has obtained any undue advantage by this transaction over the plaintiff. The result therefore is that this appeal is allowed and the plaintiff's suit is dismissed. In view of the facts and circumstances of the present case however the parties will bear their own costs throughout. Leave to appeal under Clause 15, Letters Patent, has been asked for in this case and is refused.