1. This is an appeal by the fourth defendant in a suit for cancellation of a deed of gift. On the 20th February 1909 Raimohan Saha executed the deed in question in favour of his wife Bidyasundari Dasi. The deed covered immoveable properties valued at Rs. 14,000 by guess. On the 5th July 1911 Raimohan was adjudged an insolvent and his assets vested in the Official Assignee of this Court. On the 21st November 1911 Bidyasundari executed a deed of gift in favour of Raimohan. This deed covered all but six of the properties covered by the previous deed of gift executed by the husband in favour of the wife. On the 16th December 1911 Raimohan died. On the 22nd December 1913 Bidyasundari instituted the present suit for cancellation of the deed of gift executed by her. In the fourth paragraph of the plaint it is alleged that she executed the document under the impression that it was a power-of-attorney for the management of her properties. It is farther alleged that she did not execute the document with her free-will and consent but was under the influence of her husband and his brothers, tine adds that she was not informed of the particulars of the document, got no independent advice about it and did not understand its force and effect. On these grounds she prays that the deed of gift be declared void, invalid, collusive, inoperative, ineffective and not binding on, nor enforceable against, herself and her properties. The claim was resisted by the Official Assignee. On his behalf it was asserted that the gift by Raimohan to his wife was a fictitious transaction, intended to defeat and delay his creditors and partners. It was further alleged that the deed of gift executed by Bidyasundari in favour of her husband was not executed under compulsion nor in ignorance of its contents. On these pleadings the following issues were raised:
(a) Was the plaintiff induced to execute the disputed deed of gift under undue influence :
(b) Did the plaintiff execute the above document without knowing its contents and understanding its effect upon her interest;
(c) Is it true that the plaintiff had no independent and disinterested advice in connection with the disputed deed of gift?
2. The Subordinate Judge disbelieved the allegation that the plaintiff had executed the document under the impression that it was a power-of-attorney. He held that she must have been told that it was a deed of gift, although she might not have been supplied with full particulars. But the Subordinate Judge held that the plaintiff had no independent or disinterested advice, that she did not -understand the true nature and contents of the document and that she executed it under undue influence and pressure. He declined to investigate the allegation of the Official Assignee that the gift by the husband to the wife was never intended to operate as a genuine transaction. In this view, the Subordinate Judge decreed the suit and cancelled the deed of gift. The Official Assignee has appealed to this Court. The appeal was heard by Chitty and Beachcroft, JJ., on the 20th July 1917 when they held that, for the proper determination of the appeal, evidence should be taken and a finding arrived at with regard to the first deed of gift. They accordingly framed and remitted for trial the following issues:
(i) Whether the deed of gift by Raimohan to Bidyasundari was a benami transaction or was intended to convey the properties to her;
(ii) Under what circumstances and for what purposes was that deed of gift made;
(iii) Was Bidyasundari ever in possession of the properties so conveyed?
3. The Subordinate Judge took evidence, oral and documentary, and came to the conclusion that the deed of gift by Raimohan to Bidyasundari was a benami transaction, that it was executed to defeat the claim of creditors and that the lady was never in possession of the properties ostensibly transferred to her. The new evidence together with these findings has been made part of the record and the appeal has been argued before us with reference to all the materials.
4. On behalf of the plaintiff-respondent, the propriety of the order made by Chitty and Beachcroft, JJ., has been called in question, and our competency to reconsider its necessity has been supported by reference to the decisions in Hiatunnessa v. Kailash Chandra 17 Ind. Cas. 224 : 16 C.L.J. 259; Hanuman Das v. Gursahay Singh 21 Ind. Cas. 700 : 18 C.L.J. 181 and East Indian Railway Co. v. Changa Khan 28 Ind. Cas. 245 : 22 C.L.J. 212 : 42 C. 888 : 19 C.W.N. 1034. It is needless to define the exact powers of the Court at the stage of the final hearing of the appeal: it is sufficient to state that the entire appeal is open for consideration and we must base our decision on such portions of the materials on the record as appear to us to be relevant. We are further dearly of opinion that for the proper determination of the matter directly in controversy between the parties, an investigation of the issues remitted for trial by Chitty and Beachcroft, JJ., was essential. The two gifts, though separated by nearly three years in point of time, cannot be assumed to be wholly unconnected transactions; and the facts disclosed after remand tend to show that there is an intimate relation between them.
5. As regards the deed of gift executed by Raimohan in favour of Bidyasundari, the Subordinate Judge has laid stress upon the suspicious circumstances which attended its execution. The document was executed secretly and was attested by witnesses, the majority of whom cannot be traced. Although the donor had three sons, he transferred the best and most valuable of his properties including his homestead to his wife; why he felt impelled to adopt such a course is not satisfactorily explained. Suspicion as to the genuineness of the transaction is deepened, when we discover that at the time of the alleged gift, the firm (in which Raimohan was a partner) was heavily involved in debt and was greatly embarrassed, though perhaps not actually insolvent; and we have further the significant fact that the gift was deliberately kept secret till the firm was adjudged bankrupt. In such circumstances, it is by no means difficult to form an estimate of the true nature and purpose of the gift; the object plainly was to delay, if not to defeat, the creditors whose dues were steadily increasing in amount. We have finally the unquestionable fact that the donee never took possession of the properties transferred to her. The Subordinate Judge has classified the properties under six heads and has found with regard to each of the classes that the plaintiff has failed to prove her possession in respect thereof. The evidence has been placed before us and has been minutely scrutinised, but no error has been found in the analysis given by the Subordinate Judge, such as would affect the validity of his conclusion. We must consequently affirm the finding of the Subordinate Judge that the deed of gift was secretly executed at a time when the failure of the firm was in sight, if dot actually imminent, that the matter was kept secret till the firm had been declared insolvent, that the lady never obtained possession of the properties and that no convincing explanation has been attempted to justify the transaction. In this view, we must hold that title did not pass from the donor to the donee and that consequently the plaintiff had no title to the disputed properties.
6. Apart from this, it is plain that as regards the second deed of gift, the plaintiff has not laid the foundation for a case of cancellation. Her allegations in the plaint are mutually contradictory. She asserts that when she executed the deed she was assured that it was a power of attorney for the management of her properties. This, if true, involves in essence a charge of fraud. But, not content with this, she asserts, in the alternative, that the document was not executed with her free-will and consent. This, if true, is a case of coercion or undue influence. It may be conceded that either party to a litigation may in a proper case include in his pleading two or more inconsistent sets of material facts and claim relief thereunder in the alternative; but whenever such alternative cases are alleged, the fasts belonging to them respectively should not be mixed up, but should be stated separately so as to show on what facts each alternative relief is claimed. Reference may be made in this connection to the decision of the Fall Bench in Narendra Nath Barari v. Abhoy Charan Chattopadhya 34 C. 51 : 4 C.L.J. 437 : 11 C.W.N. 20 : 1 M.L.T. 364 and of the Judicial Committee in Mahomed Buksh Khan v. Hosseini Bibi 15 I. A. 81 (P.C.) : 15 C. 684 : 5 Sar. P.C.J. 175 which is explained in Jino v. Manon 18 A. 125 : A.W.N. (1896) 1; Phillips v. Phillips (1878) 4 Q.B.D. 127 : 48 L.J.Q.B. 135 : 39 L.T. 556; Berdan v. Greenwood (1878) 3 Ex. D. 251 : 47 L.J. Ex. 628 : 39 L.T. 223 : 26 W.R. 902; Morgan In re Owen v. Morgan (1887) 35 Ch.D. 492 : 56 L.J.Ch. 608 : 56 L.T. 503 : 35 W.R. 705 and Davy v. Garrett (1878) 7 Ch.D. 473 : 47 L.J.Ch. 218 : 38 L.T. 77 : 26 W.R. 225.
7. The plaintiff, who avails himself of the right to place inconsistent cases before the Court and endeavors to establish both the alternatives by contradictory oral testimony, is, however, plainly in a state of inextricable difficulty; evidence adduced in support of both the cases can hardly be expected to secure confidence. The allegation in the present case that the plaintiff did not receive independent advice is the ground of attack common in this class of cases. The deed was of the simplest character and was free from all complexity : no explanation could have been needed to make its effect intelligible to her. The theory of undue influence looked more promising, but was not supported by tangible evidence. What really happened is clear from the evidence on the record. When bankruptcy was imminent, Raimohan transferred the properties to his wife so as to thwart, if possible, the claims of the creditors. But after the insolvency had taken place, when assets were needed to bring about a composition with the creditors, the properties had to be replaced in the name of Raimohan. After this had been effected, the contemplated settlement fell through and Raimohan himself died. Now, with a View to save as much property as possible from the grasp of the Official Assignee, Bidyasundari, probably with the concurrence of other members of the family, has instituted the present suit. The truth is that the first transaction was fictitious and the second which is challenged is genuine.
8. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and the suit dismissed. The plaintiff must pay the Official Assignee his costs in all Courts : but in view of the fact that the paper books prepared after remand consist very largely of irrelevant papers, we direct that each party should pay his own cost of preparation of the paper book after remand. This does not affect the sum which was paid by the Official Assignee in this Court on behalf of the respondent for the preparation of the paper book; he will be entitled to realise that sum. The hearing fee on each occasion is assessed at Rs. 500.