Hugh Walmsley, J.
1. This appeal is preferred by the principal defendant Rakhal Chandra Prodhan, and it is directed against a decree declaring the right of the plaintiffs to the property in suit as reversioners to the estate of the late Rakhal Chandra Banerji and directing that they should recover possession with mesne profits.
2. The facts that need be stated are as follows. One Haridas Banerjee died, leaving a widow, three daughters, and one son, the Rakhal Chandra Banerjee just mentioned. Rakhal died in 1883, soon after his father, without issue, and his estate went to his widowed mother Thakomani. Thakomani died in 1909, and her three daughters were then the mothers of nine sons, and these nine grandsons inherited each l/9th of the estate. The original plaintiffs are the two sons of Kusum Kumari; they have bought the shares of five of their cousins, and thus become owners of 7/9th. The other 2/9th belonged to the defendants Nos. 2 to 4, and these defendants were transferred to the category of plaintiffs after the institution of the suit, so that the claim is for the entire interest in the property described in the schedule.
3. Rakhal Chandra Banerjee's estate consisted of a house and some paddy land at Italghatta, on the outskirts of Calcutta, and a house at Bhowanipur in the suburbs.
4. In 1819 Thakomani applied for Letters of Administration to the estate of her son, and she was appointed Administratrix. An order was made in her favour in November, but the grant was not made until the following June. A few days later Thakomani sought and obtained permission from the Judge to sell the house and 10 bighas at Italghatta, and on July 26, 1890, she sold the same to the appellant for the sum of Rs. 2,400. The suit is aimed at this alienation. It is said that the proceedings connected with it were fraudulent from beginning to end. The fraud is described in paras. 7--12 of the plaint, Briefly stated the fraud is said to be as follows; first, that Thakomani did not really apply for Letters of Administration, her name was used, but without her knowledge: secondly, that the application for Letters of Administration contained inaccurate statements, intended to deceive, about the property and about the other persons interested in the estate; and thirdly, that Thakomani was persuaded to execute the conveyance by false representations that the document was nothing more than a lease.
5. The persons who are said to be guilty of this trickery are the appellant, and Shyam Lal Chatterji one of Thakomani's sons-in-law.
6. The defendant's case on the other hand is that everything was above board, that Thakomani found it impossible to keep the house at Italghatta, that she (sic) money, that she knew all about the application for Letters of Administration and fully understood that she was selling the property.
7. The learned Judge has found in favour of the plaintiffs on all points in a judgment which seems to me extremely one-sided. He has been very free in his findings of fraud, and he says that the conclusion is irresistible that the fraud was committed at the instance of the appellant.
8. To take the last point first, I find it impossible to agree with the learned Judge's view. It is common ground that overtures were made to the appellant for the purchase of the house. Either the appellant, or his broker, I do not think it matters which, pointed out that a purchase from Thakomani as a Hindu widow was dangerous and suggested that she should obtain Letter Administration and then secure the Judges permission to sell. That suggestion was perfectly legitimate. In fact no cautious Solicitor would advise a client to buy on any other terms. I have no doubt that the application for Letters of Administration was made with this end in view, but that fact cannot afford any ground for suspecting fraud instigated by the appellant.
9. The learned Judge proceeds to argue that the whole proceedings were fraudulent, because there was a mis-description of the asserts of the estate, and because the grandsons were incorrectly described as minors living with their grandmother. I am not prepared to regard either of these mistakes or mis-representations as amounting to fraud. The learned Judge does not say on whom the fraud was committed: the most that can be said is that by understating the assets the revenue was defrauded of a few rupees, and that by describing the grandsons erroneously the citations were imperfect. But that is all, and I cannot hold that there was fraud. Further the Probate Act contains provisions for revoking a grant made improperly. Here the grandsons grew to manhood and saw the Italghatta house in possession of the appellant: they cannot have imagined that he was in possession as lessee and not as owner, and I cannot believe the plaintiff's statement that they knew nothing of the sale until the appellant filed his written statement in the suit of 1917. That being so they have had ample opportunity of challenging the validity (sic) he grant, and as they have not done so' I do not think that they can now in this suit ask to have it treated as void.
10. Then there is the last charge of fraud: that Thakomani was deceived as to the nature of the instrument. There is a little evidence to the effect that she spoke of a lease, but there is no evidence that she ever made a grievance of the matter. For many years she saw the appellant in possession and she received no rent from him: it is impossible, therefore, to believe that she laboured under the mistaken idea that she had only given a lease. Moreover it is proved that her son-in-law Shyam Lal was acting as her adviser, and there is no evidence that he was interested in deceiving her. There is the further fact that a substantial sum of money was paid to Thakomani in the presence of the Sub-Registrar. I cannot, therefore, hold that any deception was practised on Thakomani to induce her to execute the conveyance.
11. On all these points I think that the learned Judge is wrong. There is, however, one point on which there is more to be said for the plaintiffs. Thakomani was a parda nashin lady, and as such entitled to special protection. It is said that she had no independent advice, and, therefore, the transaction is voidable. It is true that she had no advice except that of her son-in-law, Shyam Lal, Now it is not essential in every case that a pardanashin should have independent advice. The circumstances surrounding the transaction have to be considered and the present case is one in which I think it was not necessary. Surrounding circumstances show that she fully understood what was being done, that the transaction was a reasonable one, that for years neither the widow nor any member of her family felt that unfair advantage had been taken of the lady. Further the document was a short and simple one: it was not beyond Thakomani's understanding to know that she was selling the house outright; and she had at her elbow her son-in-law Shyam Lal whose good faith there is no reason to doubt. I think, therefore, that the mere fact that there was no independent adviser is not fatal to the transaction.
12. There is one other point. The defendant has gratuitously created some difficulty for himself in regard to 10 cattas of the land in suit. My learned brother has dealt with this story of a gift to the spiritual guide's son at some length and for me it is enough to say that the kabala also covers these 10 cattas.
13. In my opinion, therefore, the appeal should be allowed and the suit dismissed with costs in both Courts.
14. This is an appeal by the defendant and arises out of suit for recovery of possession of a house and lands attached to it situated in a village Italghatta in the district of 24-Pargannas described in the schedule to the plaint. This property and certain other properties belonged to one Rakhal Chandra Banerji, the last male owner, who died sometime in 1883. His property was inherited by his mother Thakomani. He had three sisters, Kusum Kumari, Uttam Kumari and Basanta Kumari, plaintiffs Nos. 1 and 2 are the two sons of Kusum Kumari, Uttam Kumari had five sons and Basanta Kumari two sons. Thakomani died on the 9th of January 1909. Plaintiffs claim the property as reversioners of their maternal uncle Rakhal Chandra Banerjee. Plaintiffs Nos. 1 and 2 claim 2/9th share by right of succession and another 5/9ths share by purchase from three of the sons of Uttam Kumari and also from the two sons of Basanta Kumari. 7/9ths share in all. The other 2/9ths share is represented by a son and two grandsons by a deceased son of Uttam Kumari. They were originally made pro forma, defendants but were transferred, to the category of plaintiffs on their application. Thakomani obtained Letters of Administration of the estate of her son Rakhal as an intestate, from the District Judge of Alipur on the 26th of June 1890 and made an application for permission to sell the disputed property on the 16th of July 1890 which was granted. Thakomani thereupon sold the property to the defendant Rakhal Chandra Burdhon on the 26th of July 1890, who has since been in possession.
15. The plaintiffs allege that the Letters of Administration as well as the sanction for sale were fraudulently obtained by collusion between the defendant and Shyam Lal Chatterjee, the husband of Uttam Kumari. The kabala was also similarly obtained by fraud. The defendant, therefore, acquired no right to the disputed property by his alleged purchase. Defendant denied the allegations of the plaintiff and asserted that he was no party to any fraudulent transaction. The Trial Court made a decree in favour of the plaintiffs for possession of the disputed property except 1 bigha of land, which defendant had subsequently purchased from another person and with regard to which there is no question before us. There was also a decree for mesne profits against the defendant.
16. A large number of issues were raised before the Subordinate Judge but the principal questions for decision are covered by Issues Nos. 2, 7, 9, 10 and 12. Those are: whether the suit is barred by limitation; whether Thakomani applied for Letters of Administration or somebody else did so in collusion with defendant: whether the Letters of Administration and permission for sale were fraudulently obtained by Sham Lal in collusion with defendant; whether Thakomani received any consideration for the kobala; and whether defendant acquired any title to the property and is entitled to retain possession of it after the death of Thakomani. All these questions were found in favour of the plaintiffs. Appellant disputes all the findings of the Court below.
17. Besides the disputed property Rakhal Chandra Banerji left some agricultural lands at Italghatta, about 23 bighas in area, and an another house at Bhowanipur, a suburb of Calcutta. After the death of her son, Thakomani with her mother-in-law removed to her house, at Bhowanipur as there, was no one in the, village to look after her and as her son-in-law Shyam Lal was living near her house at Bhowanipur. The Subordinate Judge has held that the disputed house was in a good condition at the time when it was sold. I am unable to agree with that finding. He does not seem to have dealt with the evidence of defendant's witness Barada Kanta Mandal, an old man of about 80 years, and who lives near the disputed property. He is one of the landlords with regard to the rent-paying portion of the disputed land and seems to be independent. He says that the house was in a dilapidated condition and overgrown with pipul trees. It was an old house in which the grandfather of Rakhal had lived, and it is quite probable that when it was left untenanted for several years it would be overgrown with trees and fall into decay as is usual in this part of the country. There is no evidence, as the Subordinate Judge supposed, that there was a durwan to take care of the property, and the fact that a dhobi, an 'untouchable', was allowed to live in a portion of the house belonging to a Brahmin shows that the house was, abandoned by the lady, and was not really fit for her to live in.
18. The fraud alleged by the plaintiffs shortly stated is that Shyam Lal was a poor man who had many dependents to support and he made the application for Letters of Administration in the name of Thakomani for his own benefit in collusion with the defendant, and got the kobala executed in favour of the defendant by representing to her that it was a lease on rent. Further the defendant in concert with Shyam Lal caused it to be mentioned in the application that the property in suit was the only property left by Rakhal Chandra Banerjee and also obtained the permission for sale by suppression of the fact that Rakhal had other properties and also alleging that the value of this property was Rs. 2,000 only whereas it was worth Rs. 15,000 at least.
19. I am unable to hold that Thakomani did not herself apply for Letters of Administration on the evidence, and I do not attach any importance to the fact on which so much stress was laid by the Subordinate Judge, that the name of the person who signed the name of Thakomani does not appear in the petition. The petition was presented by a Pleader on behalf of Thakomani and, in the absence of any evidence to the contrary, it must be; presumed that he had proper authority from the lady to do so and the Court which made the grant must have been satisfied as to that fact. It is not possible for the defendant to disprove the allegation of the plaintiffs at this distance of time when all the persons who took part in the transaction are dead. The subsequent events also show that Thakomani could not have been ignorant of those proceedings. It is quite true that there were certain mis-statements of facts in the application for grant of Letters of Administration, notably the omission to state that Rakhal had two other properties. The statement that the daughters and their sons ordinarily lived under her care may not have been quite correct and it may be that one of the sons of her daughters had attained majority at that time, although it is stated they were all minors. The question is whether these mis-statements were made with a fraudulent motive. If Thakomani had made the application, as I consider it to be the case, she was a party to the intended fraud and it is alleged that Shyam Lal was also acting in this matter. Shyam Lal was the husband of Uttam Kumari who had five sons and it is difficult to hold in the absence of any other evidence that Shyam Lal was taking part in a fraudulent transaction which would affect the interest of his sons who were prospective reversioners with regard to 5/9ths share of the property. It rather seems to me that the house was really a burden on the estate, which was difficult to keep, and it was, therefore, thought expedient to sell it. There would not be many purchasers of such a dwelling house in a village and the purchaser who was found would not purchase it without the production of Letters of Administration find the sanction of the District Judge for sale. It became, therefore, necessary to apply for Letters of Administration, and the other properties of Rakhal were not included in the application presumably for avoiding the payment of stamp duty with regard to those properties and as it was not necessary for the enjoyment of those properties. The grant shows that the stamp duty for this property only was readily available, as the order for grant was made on the 28th of November 1889 and the Letters of Administration was issued oh the 26th of June 1890, when the stamp duty was paid. It does not appear to me that these mis-statements in the application were made with any fraudulent intent. If Shyam Lal had any such desire he would have managed to sell the 23 bighas of agricultural lands or the house at Bhowanipur for which he might probably have got many willing purchasers.
20. Assuming that the Letters of Administration and the permission to sell were fraudulently obtained, it is contended by the appellant that there is no evidence to show that the defendant was a party to the fraud. In this case there is no direct proof that the defendant was in any way concerned with the transactions in the matter of obtaining the Letters of Administration or the permission for sale. It is quite true that circumstantial evidence is not only sufficient but in many cases it is the only proof that can be adduced to establish fraud. But as was observed in the case of Mathura Pandey v. Ram Ruchya Tewaree 11 W.R. 482 : 8 B.L.R.A.C. 108 cited by the Subordinate Judge circumstances of mere suspicion should not be taken as proof of fraud, but the evidence must be sufficient to overcome the natural presumption of honesty and fair dealing In approaching this question one must be careful not to add an illustration to the observation made by the privy Council many years ago, that Judges in India are perhaps somewhat too apt to see fraud everywhere Moonshee Buzloor Reheem v. Jadonath Bose 11 M.I.A. 551 at p. 602 : 8 W.R.P.C. 3 : 2 Suth. P.C.J. 59 : 2 Sar. P.C.J. 259 20 E.R. 208. It has been held in numerous cases that fraud is not to be presumed or inferred lightly this cannot be too strongly emphasized especially in a case like this. In this case the plaintiff does not give any evidence of any circumstance which would lead to an inference of fraud The facts on which the fraud of the defendant has been found by the Court be low are shortly these: Defendant says in his written statement that he came to know of the Letters of Administration and the permission to sell when the broker made the proposal for sale of the property to him, but it appears that the date of the bainapatra or agreement to sell, was prior to the application for Letters of Administration which was made on the 26th of August 1889. Defendant says in his evidence that when the bainapatra was made he went with it to Mr. Rutter who was an attorney of this Court, for his advice, who told him not to purchase the property, but when some months afterwards the broker brought the Letters of Administration and the permission for sale, Mr. Rutter advised him to make the purchase. From this the learned Subordinate Judge infers that the defendant asked the broker to produce Letters of Administration from the District Judge as well as the permission to sell. I agree that it might have been so. Mr. Rutter as an attorney might reasonably have advised the defendant not to make a purchase from a Hindu widow unless she obtained Letters of Administration and permission to sell the property from the District Judge, and the defendant might have informed the broker of this advice. But I am unable to make a further inference that the defendant afterwards took part in the making of the application and the mis-statements contained in them. This seems to me to be a violent presumption to make. There was nothing wrong on the part of the defendant to inform the broker as to the conditions under which he was willing to purchase the property and it may be reasonable to infer that the broker represented those facts to Thakomani or Shyam Lal. Thereupon the application was made with those misstatements and the object of those mis-statements might have been as I have indicated above. The circumstances do not, in my opinion, override the presumption of honest dealing by the defendant. The Subordinate Judge attached great importance to the fact of the non-production of the bainapatra by the defendant. After the execution of the kobala I do not see that the bainapatra had any importance with regard to the title of the defendant, and there was no reason whatsoever for his filing it in Court. If the plaintiffs thought that the bainapatra would support their case in any way it was their business to call for it. This they had not done at anytime in the course of the suit nor did they ask the defendant to produce it when he was being examined. I do not think it fair to the defendant to make any adverse inference against him for not producing that document. Nor do I see what inference of fraud can be made for the non-production of the bainapatra or how it could have established fraud if produced. It is not shown that the defendant was very anxious to purchase the property. If he was so anxious there would not have been a delay of seven months in taking out the letters after the order for it had been made, apparently for non-payment of Rs. 40 as stamp duty. Besides there is nothing to show that the defendant had any particular attraction for that property. He was a resident of Calcutta and it has not been shown that he had any other property in the place which would make it especially desirable for him to acquire this property. This was not used by him as a dwelling house and only recently when that part of the country has been developed he has filled up the tanks and let out the lands for the purpose of erecting rice mills. On these grounds I am unable to agree with the finding of the Subordinate Judge that the defendant was a party to any fraud in the matter of the proceedings taken in the Probate Court, land I think the circumstances are quite consistent with the presumption of his honest dealing.
21. If the defendant was no party to any fraud in the matter of the grant of the Letters of Administration and the permission to sell, the purchase by the defendant cannot be assailed on the ground of want of legal necessity. A Hindu widow obtaining Letters of Administration of the estate of the last male owner is in the same position as any other administrator and a sale effected by her with the sanction of the District Judge cannot be questioned on any ground not available against any other administrators. This was held in Kamikhya Nath Mukerjee v. Harichurn Sen 26 C. 607 : 13 Ind. Dec. (N.S.) 990, which was followed in Chuni Lal Haldar v. Makshada Debi 52 Ind. Cas.,309 : 23 C.W.N. 652 and Annoda Charan Mondal v. Atul Chandra Malik 54 Ind. Cas. 197 : 23 C.W.N. 1045 : 31 C.L.J. 3.
22. The next question is whether Thakomani received any consideration for the kobala. There is an endorsement on the kobala by the Registering Officer that Rs. 2,049 was paid in his presence. This endorsement was made in accordance with the statutory provision in Section 58(1)(e) of the Registration Act. This raises a presumption that (sic) consideration was paid and the onus(sic) the person who alleges that it is untrue to prove it. Ali Khan Bahadur v. Indar Parshad 23 C. 950 : 23 I.A. 92 : 7 Sar. P.C.J. 63 : 12 Ind. Dec. (N.S.) 631 (P.C.). No evidence has been given by the plaintiffs that the consideration was not paid. But it is contended on their behalf that their allegation is proved by the defendant's own evidence. Defendant says in cross-examination, 'I paid the consideration money either to Nirmal or to Shyam Lal in the presence of the Sub-Registrar'. This it is urged shows that the money was not paid to Thakomani. It does not seem to me that this evidence contradicts the endorsements on the kobala. It might have been that the defendant handed over the money to either of those persons and he made it over to the lady. Defendant's witness Hari Das Chandra proves that he saw the money being handed over to the lady. The Subordinate Judge has commented on the evidence of this witness adversely, because he made some wrong statements as regards the date of execution and the house in which Thakomani lived. But this witness gave his deposition, more than 32 years after the execution of the kobala and it is not improbable that even an honest witness might have made mistakes in these matters. He was an attesting witness to the document and it is likely that he would remember only the important facts, it would not, therefore, be correct to hold that the consideration for the kobala was not paid.
23. The Subordinate Judge has further observed that there is no evidence that the document was read over or explained to the lady and, therefore, it was not binding on the lady herself much less on the reversioners. This question was not put in issue and probably for that reason there is no such evidence. It is true that any person taking a conveyance from a purda nashin lady must prove that the document was explained to her, that she understood what she was doing and that she had independent advice. I think that the question should have been raised in the pleadings and issues so that the defendant might know what he was required to prove. I think, however, where it is established that the lady knew what the nature of the document was that she was executing and that she had independent advice, it is not necessary to prove the formal reading over or explanation of the document. The defendant here was a stranger to the lady and he had no other dealings with her. Shyam Lal her son-in-law was looking after her interest and it is not proved that Shyam Lal was acting in collusion with, the defendant. Defendant took possession of the property in 1890 immediately after his purchase. Thakomani lived till January 1909, nearly 19 years after the sale, and never questioned the transaction during all this period. If the positive case made by the plaintiffs that she executed the deed thinking that it was a lease was true, she would certainly have demanded rent during this period and would have been able to discover if any fraud had been committed on her. If she had believed that she had executed any document other than a kobala there was ample time to discover the fact. There is also an important fact which proves that the lady was fully aware that she was executing a kobala. The defendant proves, and there is no reason for disbelieving him on this point, that the lady had religious scruples about selling the temples and idols of Shiva to a non-Brahmin, as the defendant is. She, therefore, proposed that she would execute a deed of gift for them in favour of a Brahmin, and so a deed of gift Ex. B was executed in favour of defendants spiritual guide. That being so, it shows unmistakably that the lady knew she was executing a kobala for the house in dispute. If the lady knew that she was making an out and out sale, the importance of reading over the document disappears altogether. Moreover, it appears that the plaintiff No. 1 had been to the house. He also knew that the lady was not in possession, but he says that she told him that a portion of the house had been leased out. Shyam Lal Chatterji appears to have died before the lady, plaintiff No. 1 being the eldest of the reversioners, it may be expected that he would enquire about the state of the property. But he says that even after the death of his grandmother when he went to the village, he did not make any enquiry as to who was in possession of the property and if anybody had purchased it. This leads me to the conclusion that everything relating to the transaction about the property was known to the plaintiffs and it was for that reason he made no enquiries. If the plaintiff's case had any foundation, it is inexplicable why they delayed 11 years and 11 months after the death of Thakomani in bringing this suit, as plaintiffs appear to be fairly well to do This leads weight to the suggestion of the defendant that the locality having now improved and the land having become profitable being let out for erecting rice mills, the plaintiffs are trying to oust the defendant. In my judgment the circumstances show that Thakomani was fully aware that she was executing a kobala and that she had the advice of her son-in-law Shyam Lal in the matter and the transaction was quite fair and lawful.
24. The next question is one of limitation. If Article 141 of the Limitation Act is applicable to the suit, it is within time having been brought on the 7th of December 1920 the lady having died on the 9th of January 1909. The pro forma defendants were made, plaintiffs on the 4th of January 1912. This was within 12 years. The appellant, however, argues that the plaintiffs seek possession in this case not simply on the ground, that they are entitled to the property on the death of a Hindu female, but they also claim on the ground that the alienation by the lady as administratrix was tainted by fraud. Unless they can get relief on the ground of fraud they are not entitled to succeed The period, of limitation must, therefore, be three years under Article 95 of the Act. I think there is a good deal of substance in this contention but as I have found there is no fraud on the merits, I do not think it necessary to elaborate the discussion on the point. Lastly a question was raised on behalf of the respondents that assuming they are unable to succeed with regard to the house and lands, they are entitled to a decree for the temples and idols and the land included in the deed of gift Ex. B as the lady was not entitled to make a gift. This question was not raised in the Court below and was not put in issue. If this had been done evidence might have been led to show that it was for the benefit of the idols that the gift was made. The recitals in Ex. B show that the daily worship, etc., of the idols were not being properly carried on. But the further difficulty in the plaintiff's way is that the properties sued for in the plaint are all included in defendant's kobala Ex. A, as would appear from a comparison of the boundaries given in the kobala with the boundaries given in Ex. L (the previous plaint in a suit brought by the plaintiffs and withdrawn with regard to the disputed properly). Although there have been some changes in the description of the boundaries in the present plaint, it is clear that the property is the same as included in the other documents. It is apparent, therefore, that Ex. B was executed, by the lady only to satisfy her religious scruples and not with the object of conferring a new title.
25. I agree on these grounds that the appeal should be allowed and the suit dismissed with costs in both Courts.