Asutosh Mokeerjee, J.
1. The subject matter of the litigation which has culminated in the pre. Rent appeal is an estate of considerable value left by one Kedar Nath Ghose who died intestate on the 7th October 19(sic)5. The foundation of the fortune of the family was laid by his father, Govinda Chandra Ghosh, who executed a Willon the 21st August 1905 which was registered, but was not probated alter his death on the 9th November 1913. The relationship of the members of the joint family composed of the descendants of Govinda Chandra Ghose will appear from the following genealogical table:
GOVINDA CHANDRA GHOSE
died 9th November 1913.
Ambika Kedar Nath Moti Lal Satis Chandra
Charan Ghose, Ghose, Ghose, Ghose,
died 1886 died 7th died 1885. defendant.
2. Govinda Chandra Ghosh had four sons, Ambika Charan and Moti Lal who died in his lifetime, and Kedar Nath and Satis Chandra who survived him. When Kedar Nath died, he left him surviving his brother, Satis Chandra, his widow Kalidasi, his widowed daughters Nalinibala and Chinabala, and two granddaughters, Radharani and Umasasi. The widow, Kalidasi, had two brothers Kamini and Rajkumar, and was the daughter of a family of Dectis whose genealogical table is set out below:
KEDAR NATH DEOTI.
Kamini. Kalidasi, plaintiff. Rajkumar.
3. Shortly after the death of Kedar Nath Ghose, a partition deed was executed on the 4th November 1915 between his brother Satis Chandra and his widow Kalidasi, and the document was registered on the 8th December 1915. On the 28th June 1916 the widow instituted the present suit for cancellation of the partition deed on the ground of fraud and unfairness, for declaration of exclusive title to a bard ware business, its assets and the properties acquired from its income, for declaration of joint title to other properties, for partition and accounts, and for incidental reliefs. The defendant denied all the material allegations in tie plaint, repelled the imputation that the partition dead had not bean fairly obtained, asserted that the properties claimed as exclusively owned by the husband of the plaintiff really formed part of the, joint family estate, and repudiated all liability to render accounts. On these pleadings, the following issues were framed end set down for trial:
1. Has the plaintiff any cause of action?
2. Can the suit proceed without ad valorem Court fees being paid en the value, pf the entire properties in suit?
3. Is the suit bad for non-joinder of parties?
4. Was the deed dated, the 4th November 1915 read over and explained to the plaintiff and was it understood by her? Was it executed by her with free will and consent? On was it obtained from her by fraud as alleged in the plaint?
5. Was Kedar Nath Ghose the sole owner of the Karbar at 78, Olive Street, Calcutta? Or, did it belong to his father Govinda Chandra Ghose, and was inherited, on his death by his two sons Kedar and Satis? Was it their joint property?
6. Was the house at Benaras the joint property of Kedar and Satis? What is the plaintiff's share in it?
7. Did the plaintiff's husband purchase the garden at North Bantra from the widow of Bellilios in benami of the defendant.
8. Is the suit barred by the principles of estoppel, acquiescence and waiver?
9. Was the manufactory at Bantra an independent Karbar? Or, did it form one Karbar with the Karbar at 78, Clive Street?
10. Is the defendant liable to, render accounts of the Karbar at Bantra and of the Karbar at 78, Clive Street? If so, for what period.
4. After a protracted trial, the Subordinate Judge decreed the suit in part He held on the fourth and eighth issues that the deed had been executed by the plaintiff under circumstances which made it inoperative against her as an illiterate parda nashin lady, and that there was no question of estopped, acquiescence or waiver. He also held, upon the fifth, sixth, seventh and ninth issues, that the hardware business at 78, Clive Street which stood in the name of Kedar Nath Ghose was an ancestral joint family concern, that the smithy and manufactory in the family dwelling house at South Bantra in the District of Howrah was rot an independent business, that the lands and houses in Calcutta and Benares had been acquired with joint funds and formed part of the family estate, and that the garden at North Bantra purchased from Bell-lira must be included in the same category. He further held, on the tenth if sue, that the defendant, who was in charge of the business at 78, Clive Street and at South Bantra was bound to render accounts from the date of the death of Kedar Nath Ghose. On these findings, the Subordinate Judge bas set aside the partition deed, declared that all the properties in suit were jointly owned and possessed in equal shares by Kedar Nath Ghose and Satis Chandra Ghosh, and directed partition and accounts; he has also ordered the parties to bear their respective costs. Neither the plain tiff nor the defendant is satisfied with this decision, as the latter has appealed and the former has preferred a memorandum of cross-objections. The substantial question argued en the appeal relates to the validity of the partition deed; the principal point raised in the memorandum of cross-objections refers to the true character of the properties claimed by the plaintiff as the separate requisitions of her husband. Neither the memorandum of appeal nor the memorandum of tress objections bore adequate Court-fees, and the Court was called upon to decide the joint during the course of the argument. Each memorandum be re a Court fee of Rs. 10 only; this was plainly inadequate. The defendant-appellant had obviously anticipated the objection and had made a cote on his memorandum at the time of presentation to the following effect: 'The suit was valued at Rs. 1,187(sic)-80. The appeal is for a declaration.' This cote most have been recorded in view of Clause 17 (iii) of Schedule II of the Court Fees Act, 1870, which provides that the plaint or memorandum of appeal in a tint to obtain a declaratory decree where to consequential relief is prayed mutt bear a Court-fee of Rs. 10. But the plaint in the present case was unquestionably not a plaint in a suit of this description and bore a Court-fee of Rs. 1,187-80. The memorandum of appeal also could not be treated as a memorandum in a suit of that nature; indeed, the appeal itself was not in essence for a pure declaration. The Trial Court had (sic)cenceiled the partition deed, had determined the question of title to the properties, had directed partition of all the properties in suit, and bed rendered the defendant liable for accounts. An appeal directed against a decree so comprehensive in scope, can, by no stretch of language or recourse to legal fiction, be described as an appeal for a declaration, even if we were to assume that an appeal, which really seeks nothing beyond a declaration, in a edit other than a suit for a pure declaratory decree without consequential relief, was ever intended to he included within Clause 17 (iii) of Schedule 11 of the Court Foes Act, 1870. Similar remarks were applicable to the memorandum of cross-objections. The appellant and respondent were consequently sailed upon to value the reliefs sought in the appeal and by way of cross objection?, respectively. It is not necessary to set out the details of the calculations made for the purpose of valuation; suffice to state that, as a result of this investigation, it was found that the appellant and respondent were liable to pay Rs. 1,105 and Rs. 825 respectively, as deficit Court fees on the memorandum of appeal and the memorandum of cross-objections. It was al a found that the fee paid ad valorem on the plaint in the Court below was insufficient and that an additional sum of Rs. 145 was leviable on that account from the plaintiff respondent. The appellant duly paid the deficit Court-fee and thus regularised the memorandum of appeal. The plaintiff-respondent paid the additional sum leviable on the plaint but net the deficit Court-fees required to validate the memorandum of cress objections. There is consequently, no valid cross-objection which may he considered by the Court, and the memorandum must be rejected. The arguments on both sides have thus centered round what is the root question in this case, namely, the validity of the partition deed taken by the appellant from the respondent. Before, however, we investigate the circumstances which led up to the execution of the deed, we may usefully re-call the well-established cardinal principles now recognised as applicable to a case of this description, where the Court is called upon to throw a protective cloak upon a parda nashin woman who is unable to protest herself.
5. It is well-settled that the Court, when called upon to deal with a deed executed by parda-nashin lady, must satisfy itself upon the evidence, first, that the deed was actually executed by her or by Home parson duly authored by her, with a full understanding of what she was about to do; secondly, that she had full knowledge of the nature and effect of the transaction into which she is said to have entered; and, thirdly, that she had independent and disinterested ad vies in the matter. The leading judicial decisions which recognize these principales are collected in the judgment of this Court, in Mariam Bibee v. Muhammad Ibrahim 48 Ind. Cas. 561 : 28 C. L. J. 306 at p. 367., and on examination they will be found to fall broadly into two groups, namely, first, cases where the person who seeks to hold the lady to the terms of her deed is one who stood towards her in a fiduciary character or in soma relation of personal confidence; and, secondly, cases where the person who seeks to enforce the deed was an absolute stranger and dealt with her at arm's length. In the former class of cases, the Court will act with great caution and will presume confidence put and influence exerted; in the latter class of cases, the Court, will require the confidence and influence to be proved intrinsically. This is a fundamental distinction which does not appear to have been always kept in view, with the result that observations made in the one class of cases have been applied without scrutiny to the confusion which has resulted from this failure to discriminate between the two classes of cases, are furnished by the decisions in Ranee Usmut Koowar v. Tayler 48 2 W. R. 307; Tayler v. Ranee Asmedh Koonwar 4 W. R. 86. Soondar Koomaree v. Kishoree Lal 5 W. R. 246; Ram Pershad v. Ranee Phoolputtee 7 W. R. 98; K(sic)nari Lal v. Kanini Debi 1 B. L. R. (O. C. J.) 31 : 1 Ind. Dec. (N. S.) 302; Manohur Das v. Bhagabati Dasi 1 B. L. R. (O. C. J.) 28(sic)3 Ind. Dec. (N. S.) 301; Asmutconissa Bebee v. Alla Hafiz 8 W. R. 468; Roop Narain Singh v. Gugadhur Pershad Narain 9 W. R. 29; annalal Seal v. Srimati Bam sundari Dasi 6 B. L. R. 732; Dooles Chand v. Oomda Khanum 18 W. R. 238; Bibee Rukhun v. Shaikh Ahmed Hossein 22 W. R. 443; Khas Mehal v. Administrator-General of Bengal 5 C. W. N. 505.; Nistarini Dasi v. Nundo Lall 26 C. 891 at p. 918 : 3 C. W. N. 670 : 13 Ind. Dec. (N. S.) 1171.; Keshab Lal v. Radha Raman 20 Ind. Cas. 717 : 17 C. W. N. 991.; Badiatannessa Bibi v. Ambica Charan Ghose 23 Ind. Cas. 401 : 18 C. W. N. 1133.; Bhuban Mohini Dasi v. Gapalakshmi Debi 32 Ind. Cas. 119 : 19 C. W. N. 1330.; Behari Lal v. Habiba Bibi 8 A. 267 : A. W. N. (1886) 91 : 5 Ind. Dec. (N. S.) 58.; Achhan Kuar v. Thakur Das 17 A. 125 : A. W. N. (1895) 24 : 8 Ind. Dec. (N. S.) 466.; Hakim Muhammad v. Nan(sic)ban 20 A. 447 : 2 C. W. N. 545 : 25 I. A. 137 : 7 Sar. P. C. J. 353 : 9 Ind. Dec. (N. S.) 647 (P. C.). 31 B. 165 : 8 Bom. L. R. 781.; Sumsuddin Goolam Husein v. Abdul Husein 31 B. 165 : 8 Bom. L. R. 781.; Tamarasherri Sivithri v. Maramat Vasudevan 3 M. 215 : 1 Ind. Dec. (N. S.) 191.; Mahadevi v. Neelamani 20 M. 269 : 7 Ind. Dec. (N. S.) 191.; Latchemy v. Iiswcock (1800) 1 Strange (N. C.) 26 at p. 30 : 5 Ind. Dec. (O. S.) 14.; Chellunmal v. Garrow (1812) 2 Strange (N. C.) 1 : 5 Ind. Dec. (O. S.) 233.; Narsummall v. Lutchmana (1809) 1 Strange (N. C.) 312 : 5 Ind. Dec. (O. S.) 165. Reference may also be made in this connection to the two decisions of the Judicial Committee in Moonshee Buzloor Ruheen v. Shumsoonnissa Begum 11 M. I. A. 551 at p. 586 : 8 W. R. P. C. 3 at p-5 : 2 Suth : P. C. J. 59 : 2 Sar. P. C. J. 259 : 20 E. R. 208. and Geresh Chunder Lahoree v. Musammat Bhuggobutty Debia 13 M. I. A. 419 at p. 431 : 14 W. R. P. C. 78 : 2 Suth. P. C. J. 339 : 2 Sar. P. C. J. 579 : 20 E. R. 607; In the former ease, where the transaction was between a husband and a wife, their Lordships observed that the burden of proving the reality and bona fides of the purchases pleaded by her husband was properly thrown on him. In the latter case, which was one of a death-bed gift in favour of the donor's brothers in their wives' names to the exclusion of her husband's adopted son, their Lordships pointed oat that the Judicial Committee and the Courts in India had always been careful to see that deeds taken from parda women had been fairly taken and that the party executing them had been a free agent and duly informed of what she was about. The substance of the matter the it that the fairness of the bargain is the crucial test. This principle runs through the later decisions of the Judicial Committee, though the rule is more specially enforced in cases where a fiduciary relation involving trust and confidence is shown to exist; Syud Fuzzul Hossein v. Amjad Ali Khan (29); Ashg v. Ali v. Delroos Banoo Begum (30), on appeal from Delroos Banoo Begum v. Nawab Spud Ashgar Ally Khan (*31); Azeecunnissa v. Baqur Khan (32); Tacoordeen Tewarry v. Nowab Syed Ali Hossein Khan (33); Sudisht Lal v. Musammat Shoobarct Koer (34); Mahomed Buksh Khan v. Hossein Bibi (35); Amarnath Sah v. Achan Kuar (36); Deo Kuar v. Man Kuar (37); Hakim Muhammad v. Najiban 20 A. 447 : 2 C. W. N. 545 : 25 I. A. 137 : 7 Sar. P. C. J. 353 : 9 Ind. Dec. (N. S.) 647 (P. C.). 31 B. 165 : 8 Bom. L. R. 781.; Annoda Mohan Rai v. Bhuban Mohini Debi (38); Shambati Koeri v. Jago Bibi (39); Ismail Moosajee Mookerdam v. Hafiz Boo (40); Kishori Lal v. Chuni Lal (41); Muhammad Kamil v. Imtias Fatima (42); Sajad Husain v. Abid Husain Khan (43); Kali Bokhsh Singh v. Ram Gopal Singh (41); Mahabir Prasad v. Taj Begum (45); Atima, Bibi v. Shamalanand (46); Mohammad Ali v. Ramzan Ali (47); Sunitabala Debi v. Diora Sundari Debi (48); Mati Lal Das v. Eastern Mortgage & Agency Co. Limited (49). The essence of the matter was tersely put by Lord Back master in Sunitabala Bebi v. Bhara Sundari Debi (48) when he stated that the circumstances under which a parda-nashin woman agrees to transfer property in whish she is interested must, be carefully examined, in order to ascertain that she had independent advise and that the lady had sufficient intelligence to understand the relevant and important matters, that she did understand them as they were explained to her, that nothing was concealed and that there was no undue influence or misrepresentation. The principle thus enunciated was adopted as the basis of the judgment pronounced by Sir John Edge in Mati Lal Das v. Eastern Mortgage & Agency Co. Limited (49). It will be observed that the Court must thus have regard to the intellectual attainments of the lady consented and will naturally be disinclined to set aside the deed where she is proved to have been of business habits, to have been literate and to have possessed a capacity to judge for herself; Sunitabala Debi v. Dhara Sundari Debi (48); Mati Lal Das v. Eastern Mortgage & Agency Co. Limited (49); Mohammad Ali v. Ramsan Ali (47); Kali Bakhsh Singh v. Ram Gopal Singh (44); Sajjad Husain v. Abid Husain Khan (43); Mahomed Buksh Khan v. Hosseni Bibi (35); Mahomed Prasad v. Taj Begam (45); Azima Bibi v. Shama-lanand (46); Ismail Moosaiee Mookerdam v. floats Boo (40); Hodges v. Delhi and London Bank limited (50); Bindubashini Dasi v. Giridhari Lal Roy (51); Alik an Bibi v. Rambaran Shah (52); Bhuban Mohini Dasi v. Gajalakshmi Debi (17). These, however, are only general principles, and it cannot be too strongly emphasized that there is a grave risk of failure of justice, if they are moulded into inelastic formulas or crystallised into inflexible rules, and treated as of universal application, regardless of the special fasts and surrounding circumstances of the concrete case which requires adjudication.
6. The case before us belongs to the first class mentioned above, where the person who seeks to hold the lady to the terms of her deed is one who stands towards her in a relation of personal confidence. Here, he is the younger brother of her husband. The two brothers had lived jointly in amity, and Kalidasi who was same years older than Satis, was on the best of terms with her brother-in-law. On the death of her husband, Satis, though younger in age, became ipso facto the head of the joint family, she would thenceforth have to live under his case, look upon him as his natural protector and continue to repose confidence in him properly to safeguard her rights This position is in absolute conformity with the normal structure of a joint Hindu family and is recognised by ancient texts of Hindu Law, such as the text of Narada XIII, 28, 29 cited by Jimutavahana in his Dayabhaga, Chapter XI, Section 1, paragraph 61, which provides that when the husband is deceased, his kin is the guardian of his childless widow, and it is only when the husband's family becomes extinct or contains no male or is helpless that the kins of her own father are entitled to he her guardians. This is not archaic and obsolete law, but has been recognised in modern decisions: Khudiram Mookerjee v. Bonwari Lal Roy (53). In such circumstances, the principle formulated in Section 111 of the Indian Evidence Act applies, viz., that where there is a question as to the good faith of a transaction between, parties, one of horn stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. It is an elementary principle that whenever any person derives a benefit under a deed, if any confidential or fiduciary relation subsists between the parties, the Courts so far presume against the validity of the instrument as to require some proof, varying in amount according to circumstances, of the absence of anything approaching to imposition, overreaching, undue influence, or unconscionable advantage (Story on Equity Jurisprudence, Section 308-323, referred to in Taylor on Evidence, Section 151). As Story puts it, Courts of Equity do not arrest or set aside an act or contract merely because a man of more honour would not have entered into it; there must be some relation between the parties which compels the one to make a full discovery to the other or to abstain from all selfish projects. But when each a relation does exist, Courts of Equity, acting upon this super induced ground, in aid of general moral?, will not suffer one party, standing in a situation of which ha can avail himself against the other, to derive advantage from that circumstance, for it is founded in a breech of confidence. The general principle, which governs in all oases of this sort is that if a confidence is reposed and that confidence is abused, Courts of Equity will grant relief. Equity demands in such circumstances the most abundant good faith (uberrima files) in the transaction between the parties. There need not necessarily be misrepresentation by one party to the other to invalidate the deed; if there is any concealment of a material fact, any failure to disclass material information or any just suspicion of artifice, equity will interpose and pronounce the transaction void and as far as possible restore the parties to their original right. Baker v. Bradley (54), Bank of Montreal v. Stuart (55), Coomber, In re, Coomber v. Coomber (56). We must not lose sight, however, of the fact that the question is one of substance and not merely one of burden of proof, any where, as in the present ease, evidence has been android by bath the contestants in support of their respective oases and the relevant facts are before the Court, the question of burden of proof in immaterial, and import-are should not be attached to the question on whom the initial onus ley; see the observations of Viscount Haldane in Rundan Lal v. Begam-un-nisi (57) and of Sir Lawrence Jenkins in Seturatnam Aiyar v. Venkatachala, Gounden (58). We mast now determine, how the case before us stands when tested in the light of these principles.
7. Kedar Nath Ghose, as previously stated, died on the 7th October 1915. The partition deed now in controversy was executed on the 4ih November 1915, that in, as the Subordinate Judge points oat, twenty-seven day after the death of Kedar Nath Ghose and three days before his Sradh ceremony had been performed; but the deed was based on a draft which had bean prepared ten days earlier, on the 25th October, when the parties were abent the middle of the period of moaning. The provisions of the parting deed have been correctly summarised by the Subordinate Judge. The document recites that the hardware haziness at 78, Civil Street as well as the house at Banares belonged jointly to Kedar Nath and Satis Chandra in equal shares and that the widow gave up her claim to those properties as also to the remainiet of the joint estate, in consideration of the benefits granted to her, which may be enumerated as follows: (a) Kalidasi would become absolute owner of the house at Benares as also the home at Howrab, No. 8, Kaliprasad Cbakrabarti Lans; (b) that Says would pay to Kalidasi Rs. 20,000 by annual instalments of Rs. 2,000 each, the entire sum to be charged on the ancestral dwelling house at 3 and 4 Kaliprasad Chakrabarti Lane; (c) that Satis would (sic)cas, within three months from the dates of execution of the deed, Rs. 2,000, to Nalinibala and Rs. 4,000 to Chinabala: (d) that Satis would pay Rs. 2,500 on the oscasion of the marriage of each of two daughters of Chinabale, name Radharani and Umanasi; and (e) that Satis would maintain Kilidsui, her two daughters and the granddaughter, in the family dwelling house and if Kalidasi should live apart Satis would pay he? Rs. 10, per month for her maintenance and after her death Rs. 10 per month for the maintenance of her two daughters Nalinibala, and Chinabala. The deed recites on the fate of it that the distribution of the family estate gave effect to the intentions of Kedar Nath Ghose as expressed immediately before his death. The case for the plaintiff is that this allegation, which goes to the root of the entire transaction, is unfounded. It is, consequently, necessary to investigate the incidents which actually happened before the death of Kedar Na h Ghose. The evidence makes it abundant clear that Kedar Nath Ghose did intend to make a testamentary disposition of his properties do ring his last illness. He gave in nations for the preparation of a draft Will, which was drawn up by one Aghor Nath Maiti. A fair copy was then made a by one Akshay Kumar Ghose. The intended Will war, however, never executed; for when the document was taken to Kedar Nath Ghose for signature, it was found that he had lost consciousness. He never regained consciousness and the end same immediately afterwards. While he was on the deathbed, thus lying unconscious us, a dissension bock place, among the perm no present as to what steps might be taken to tarry cut the projected disposition of the estate. One Badal Chandra Ghose, a Pleader, suggested that after the death of Kedar Nath Ghose, a deed of family arrangement might be executed between Satis Chandra Ghose and Kalidasi, and he forthwith prepared a draft for such a deed. No further steps appear to have been taken for coma days after the death of Kedar Nath Goose, but on the 25th October 1915, the draft of a partition deed was drawn up by one Nilment Bose and was executed as well by Kalidasi as by Satis Chandra Ghose. On the basis of this draft, a fair copy was subsequently prepared, and the partition deed in its final form, which is the subject; matter of this litigation, was executed on the 4th November 1915. It may be stated here that as Kalidasi was illiterate, her name was at the request of Satis, signed on the draft as well as on the final deed by her daughter Chinabala who, as the evidence shows, is a half crafty girl and herself writes Boggle very imperfectly, as may be tune from an inspection of tic original signatures on the record. The draft of the intended Will made by Aghor Nath Maiti, the draft of the partition deed made by Nilmoni Boer, and the partition deed as executed and registered, have been produced; bat the fair copy of the intended Will and the draft of the decree family arrangement prepared by Badal Chandra, Ghosh have not been produced; there tan be little doubt, as ill presently be seen, that they have been designedly withheld by the defendant, because that would have materially weakened his cane. The draft of the Will is fall of alterations and in terminations these were not indicated in the paper book placed before the Court, and the bearing bad to be adjourned, so that the Court might be supplied with a fresh translation of the deed indicating the draft in its original form as also the various alterations and interlineations. An inspection of the draft in this form makes manifest the vital changes introduced into the deed. This inevitably raises the question, whether the draft in its original form, or the draft as altered, corresponded to the actual instructions given by Kedar Nath Ghose. The Subordinate Judge has held that the draft in is original form contained the instructions given by Kedar Nath Ghose before his death, and that the changes introduced into the draft did not form part of those instructions. I feel no doubt that the view taken by the Subordinate Judge is correct. It is neediest to determine, how far the instructions given by Kedar Nath Ghose were voluntary, or how far, in the precarious state of his health, he acted under the influence of his brother. The fact remains that to some at any rate of the persons present the terms seemed ungenerous, and one of them, Asutosh Banerjee, pressed for liberal treatment of hit wife and children, Let, it be assumed, however, for our present purpose, that the instruction were voluntarily given there were correctly represented by the contents of the draft as drawn no by Aghor Nath Maiti. The changes in the draft were, in my opinion, import of the instruction indeed, is has not been definitely disposed by the defendant when and by whom the changes were made. It was rather doubtfully surfeited that they was in the handwriting of Asutosh Banerjee, who was pre eat in Court at one stage but was not examined. If, now we compare the draft Will in its original form, a representing the last wishes of Kedar Nath Ghose, wish the partition dead in its final form which purports to give efect to those intentions, what is the result? In the original draft Will, we find that Rs. 20,000 was to be paid to Kalidasi, in one installment; in the partition deed, we find the the payment was to be spread over ten year'; this accord's with the interlineation. Again, according to the original draft Will, Kalidasi was to take an absolute right in the two houses at Benares and Howrah; by the partition deed, a life estate is conferred on Kalidasi and her two daughter; this also accords with the interlineations. There is another significant alteration which cannot be overlooked; wherever is the draft Will, the singular would amar (my) occurred, it has been altered into the plural amader (oor). In my opinion there in ample indication that the draft Will was so altered, attar the death of Kedar Nath Ghose, that it might serve as a draft for a partition deed to be executed by two persons, namely, Kalidasi and Satis Chandra Ghose, This also explains why the fair copy of the Will made by Akshay Kumar Ghose and the draft deed of firmly arrangement made in accordance therewith by the Pleader, Badal Chandra Ghosh, have both bean withheld; those two documents were in agreement with the draft Will in its original form and if they had been produced, they would have completely demolished the thorny that the draft Will with alterations represented the last intentions of Kedar Nath Ghose. This fits in further with the significant circumstance, emphasised by the Subordinate Judge, that the in ended With of Kedar Nath Ghose was never shown to he plaintiff We may also observe that the partition dead in its final form departs, in at least one particular, from its draft which also contains alterations and interlineations, namely, that the maintenance for Kalidasi and her two daughters at Rs. 20 per month is reflected to Rs. 10 for herself and nothing for her daughters until her death. There is no explanation on whose authority, the alteration in the drift dead of partition was made by Nilmoni Boss who has not been examine on the plea of absence at Walt air. In my view, there is no escape from the conclusion that the partition deed, as executed, departs in very material particulars from the true intentions of Kedar Nath Ghose as expressed shortly before his death, and that as the assent of Kalidasi thereto was secured on the untrue representation that its provisions tarried oat the last wishes of her husband the deed was in essence obtained from her by false pretences and must on this ground alone be set aside. Bat there are other grounds equally weighty, which destroy the operative character of the deed.
8. The schedule to the partition deed sets out the values of the properties. The Subordinate Judge has held it conclusively proved, by local investigation and the other evidence adduced in the case, that the properties reserved for Satis were grossly undervalued, while the two houses given to the plaintiff were overruled. This conclusion of the Subordinate Judge is amply sustained by the evidence, and he is undoubtedly right in his view that the properties taken by Satis are the cream of the estate while those assigned to the plaintiff are the worst of all. It is further important to note that inasmuch as Satis takes under the deed the entire joint estate, with the exception of what is expressly given lo Kalidasi, it is an obviously damaging circumstance that some valuable properties are not mentioned at all in this deed of partition. Upon the question of undervaluation, the most flagrant instante is the value of the stock-in-trade of the hardware business and the workshop appurtenant thereto, which is stated in the schedule to the deed to be only Rs. 31,000, but is now shown to be at least Rs. 60,442. Another instance, equally striking, is that of premisess JO and 12, Raja Woodmunt Street and 77-2 Olive Street which are described as worth Rs. 1,001 only; this ignores what was well known to Satis, namely, that the price had been fixed at Rs. 20,000 and that Kedar had paid Rs. 15,000 in part payment to the vendor to satisfy a mortgage on the property. A third instance, in no way less impressive, is that of the ancestral dwelling house which was valued Rs. 21,000, bat has now been found to be worth Rs. 35,746. It is significant that all there in itances of under-valiation related to properties taken by Satis; on the other band, the value of what has been assigned to Kalidasi has been demonstrated to be in fact much less than the estimated amount. As an instance of total omission, mention may be made of an incident which is by no means creditable to Satis. It appears, that after the death of Kedar, he signed the name of Kedar and on the 18th October 1915 withdrew from the National Bank of India, a sum of Rs. 11,200 which stood in the name of Kedar, and deposited the cum in his own name in the Mercantile Bank of India. No mention was made of this amount in the partition deed. In the face of these circumstance, it is impossible to hold that the defendant observed that 'utmost degree of good faith' which his sister in-law was entitled to expect from him in his dealings with her, on well-recognised equitable principles. This by itself would manifestly justify the cancellation of the deed.
9. But it has been strenuously arssued by the defendant that the lady had the benefit of independent advice and cannot consequently impeach the transaction. In my opinion, there is no solid foundation for this contention. There is no satisfactory evidence to she that Rajkumar Deoti, the brother of Kalidasi, did in fact advise her in this matter, or was able and willing to give her the requisite assistance. To enable us to appreciate the situation of the parties at the time, the successive events may be conveniently set out in chronological order:
10. 7th October 1915---Kedar Nath Ghose died.
11. 25th October 1915---Draft partition deed signed.
12. 4th November 1915---Partition deed executed.
13. 6th November 1915---Sradh ceremony of Kedar Nath Ghose performed.
14. 22nd November 1915---Rajkumar borrowed Rs. 1,001 from Satis.
15. 8th December 1915---Partition deed registered.
16. 23rd January 1916---Rajkumar took certified copy of partition deed from Registration Office.
17. 26th January 1916---Rajkumar borrowed Rs. 2,000, from Satis.
18. 31st January 1916---Kalidasi applied for Succession Certificate in respect of Insurance Policy on life of her husband (not included in partition deed).
19. 23rd February 1916---Kalidasi applied to include in Succession Certificate G. P. Notes for Rs. 7,500 (not mentioned in partition deed).
20. 11th March 1916---Proposed supplementary deed of family settlement drawn up by Satis.
21. 8th April 1916---Satis objected to grant of certificate to Kalidasi for G. P. Notes.
22. 10th April 1916---Satis applied for certificate for G. P. Notes.
23. 12th May 1916---Satis sued Rajkumar to recover the sums advanced to him (Suit No. 103 of 1916).
24. 13th May 1916---Properties of Rajkumar attached before judgment at the instance of Satis.
25. 16th May 1916---Rajkumar obtained power-of-attorney from Kalidasi.
26. 20th May 1916---Applications for Succession Certificate made by Satis and Kalidasi heard. Satis produced partition deed. Satis granted certificate for G. P. Notes; Kalidasi granted certificate for Life insurance Policy.
27. 28th June 1916---Kalidasi instituted present suit.
28. 12th July 1916---Satis appointed Receiver of hardware business.
29. 11th July 1917---Order for grant of certificate to Satis in respect of G. F. Notes set aside on appeal.
30. It is by no means dear from the evidence on the record that Kalidasi acted under the advice of her brother. Rajkumar was one of the executors named in the Will intended to ha executed by Kedar Nath Ghose. He was, no doubt, aware of the terms of the Will, and it is improbable that be should have beep a party to variations there from to the prejudice of his sister.
31. This is confirmed by the significant fact that as early as 23rd January 1916, Rajkumar took a certified copy of the partition deed from the Registration Office, evidently with a view to take steps to secure to his sister her full rights in the estate left by her husband. It is farther remarkable if Raj kumar was really present throughout and advised his sister, that he should not have read over the deed and explained it to her become an attesting witness thereto, or even identified her before the Roistering Officer. Nor can we overlook the fact theft Kamini Kumar, the eldest brother of Kalidasi and Rajkumar, is conspicuous by his absence from the scene. It has moreover, been suggested on behalf of the plaintiff that Rajkumar was perhaps more anxious to improve his own prospects than to safeguard the interest of his sister. There is no direct evidence to prove this hypothesis; though it must be conceded that the circumstance that Rajkumar was able to borrow Rs. 3,000 from Sadie shortly afterward?, is calculated to excise suspicion. On the other hand it has been suggested on behalf of the defendant that the present suit has been engineered by Rajkumar to wreak his vengeance on Sates who bad enforced his claim for recovery of the loan. This theory is rot improbable but even if true, it does not justify the inference that Kalidasi has male an unfounded claim against Satis, who might perhaps have postponed the evil day for a while, if he had been diplomatic enough to keep Rajkumar under obligation for a longer period, I am not unmindful that, as observed by Fletcher Moulton, L. J. in Coomber In re Coomber v. Coomber (56), independent and competent advice does not mean independent and competent approval; it simply means that the advice shall be removed entirely from the suspected atmosphere and that from the clear language of an independent and, free from taint of interest, the party acting should know precisely the nature and consequences of the transaction I see no reason to doubt the correctness of the conclusion of the Subordinate Judge that Kalidasi had not the benefit of such independent advice from Rajkumar or any other person. It is, I think, also clear that even if Rajkumar ba assumed to have been entirely bayond the sphere of influence of Satie he was really not able to give the requisite advise. To secure a fair transaction, a full appreciation by the lady of the value and nature of her rights was essential. No doubt, as pointed out by Lord Bicemaster in Sunitabala Debi v. Dhara Sundan Debi (48), it is not necessry to insist in each such cases upon a test which depends upon a clear understanding of each detail of a matter which may be greatly involved in legal technicalities; it is sufficient that the general result of the compromise should be under-stood and that people disinterested and comnetent to give advise should, with a fair understanding of the whole matter, advise the lady that the deed should be executed. Tested from this point of view, the evidence does not show that Rajkumar himself was fully acquainted with the facts, duly appreciated the effect of the transaction and was able to advise his sister. To mention one aspect only; the deed as exeouted might well raise the point whether the transaction was a device for division of the estate between a limited owner and a reversioner and whether States could validly transfer to Kalidasi, as be did, his reversionary interest in two of the properties, indeed, the question involved was precisely such as required consideration by a lawyer, in view of the recent promouncements of the Judicial Committee in Khunni Lal v Gobind Krishna Narain (59), Amit Narayan Singh v. Gaya Singh (60), Rangasami Gounden v. Nachiappa Gounden (61), Sureshwar Misser v. Maheshrani Misram (62), and other cases reviewed in Annida Mohan Roy v. Gour Mohan Mullick (63). Although it may be conceded that, as pointed out in Buchi Ramayyan v. Jagapathi (64), the presence of a professional adviser cannot be defamed necessary in every case, the Subordinate Judge has properly commented on the fast that while a Pleader was called to witness the exaction of the intended Will of Kedar Nath Ghose and two Pleader were called to witness the registration of the partition deal, not a single Pleader, not even a competent disinterested parson, was called to advise Kalidasi in a matter of such vital moment to her, slither at the time when her assent was obtained to the draft partition deed or at the time when the deed was executed. No doubt, as pointed out by Jenkins, C. J. in Keshab Lal v. Radha Raman (15), the absence of advise would not have by itself necessarily vitiated the transaction, if it had been otherwise established to be righteous, that is, such as a right-manded parson might be expected to do. All the indentions in the present case, however, point to a contrary conclusion; and from this point of view, much weight cannot be attached to the evidence which shows that the draft partition deed was read over and explained to Kalidasi by one Fakir Chand Ghosh, who himself, as is clear from his testimony, did not fully appreciate the nature and effect of the transaction. On the other hand, there is abundant indication that full advantage was taken by Sates of the deeply distressed condition of his sister-in-law, who had shortly before lost both her sons-in law, and had hardly recovered from the shock, when she lost her husband. Before the period of mourning was over, her brother-in-law expedited the eyebath of the deal with what cannot bat be chartered as indecent haste. During this period of mourn-in?, arrangements had to be made for the performance of the prescribed ceremonies on a suitable Celia. The lady was anxious that the poor of the locality and the adjoining villages should be fed in a proper style. This request, somewhat insistently made, was utilized to put pressure upon her and to make her agree to terms which her brother-in law considered advantageous to himself. This furnishes an illustration of what is felicitously described by Lord Macnaghten in Mahomed Buksh Khan v. Hosseai Bibi as 'a sobile form of undue influence.' There can he little doubt that Satis himself must have realized that the deed bad been taken by him from his sister-in-law under circumstances which made it open to successful attack; this alone affords a plausible explanation of his conduct in the Succession Certificate cases, where he did not sat up the partition deed till a very late stage of the proceedings. But weightier than all these ancumstance put together, we have the outstanding fact that Satis, on his own initiative, took steps to prepare, at his expenses, a supplemental deed of family settlement to rectify to some extent the unfairness of the partition deed he had taken from his sister in law; the attempt, however, came too late. It is difficult to conceive what more convincing proof could have been brought forward to establish the true character of the deed challenged by the plaintiff.
32. It has finally been urged on the merits that the partition deed was in essence a deed of family settlement find should consequently be supported, even though there were no rights actually in dispute at the time of making it; in such cases as was said in Upendra Nath Bose v. Biniteshri Prasad 32Ind. Cas. 465 : 22 C, L. J. 452 at p. 476 : 20 C. W, N. 210.and Mariam Bibee v. Muhammad Ibrahim (1) the Court should not seen with much nicety, the quantum of consideration. The principle invoked may be conceded and is, as pointed out in Helan Bad v. Bwga Bas Mnnaal 4C. L.J, 823,-end satya Kumar Banerjee v. batya Kirpal Banerjee3 Ind. Cas. 247 : 10 C.L. J, 503. supported not only by the authority of Williams v. Williams (1867) 2 Ch. 294 : 36 h. J. Ch. 419 : 16 L. T. 42 : 15 W. R. 657. and Lucy's cam (1853) 4 De G. M. & G. 356 : 22 L. J, Ch.732 : 17 Jur. 1143. 43 F. R. 645 : 02 R. R.657. but also by the decision of the Judicial Committee in Sri Gajapathi Radhika Patta Maha Devi Gain v. Sri Gajapathi Nilamani Patta Maha Devi Garu 13 M. L. A 497 : 14 W. R. P, C. 33 : 66. L. R. 202 : 3 Suth. P. C, J. 305 : 2 Sar. P,C. J. 601, 20 E, R, 637 (P.C.); Mantoppa Madgowda v. Boswuntrao Nadgdai 14 M. L. A. 24 at p 36 : 15 W. R. P. C. 38 : 2 Suth P. C. J. '467 : 2 Sar P. C. J. 648: 20 K. R. 695.; Rani Mera Kumar v. Rani Hulas Kumar14 M. L. A. 24 at p 36 : 15 W. R. P. C. 38 : 2 Suth P. C. J. '467 : 2 Sar P. C. J. 648: 20 K. R. 695.; Greender Chunder Ghose v. Troyluckho Nath Ghose24 I. A, 35 : 0 C. 373 : 6 Sar. P, C. J. 267 : 17 Ind. Jur. 69 : lO Ind Dec. (n s. 253, P. c.); Muhammad Imam Ali Khan v. Husatn Khan25 I A. 16 : 26 C. 81 : 2 C. W N. 737 : 7 Bar. P. C.J, 432 : 13 Ind Dec. (n. s.) 656(P. C.); Khunni Lal v. Gobind Krishna Narain (59). But it is equally well-settled that, as James, L. J , puts it in Moxon v. Payne (75), to make a compromise of any value the parties must ha at arm's length, on equal terms, with equal knowledge and with sufficient advice and pro-teotioB; one side must not know more about the matter than the other, unless what he knows could not possibly have affected the other party's decision: Gilbert v. Endean(1873) 8 Ch 881;43 L. J. Ch,240. Maynard v Eaton(1874) : 9 Ch. D. 259 : 39 L. T. 404 : 37 W. B. 252. This accords with the rule enunciated in Gordon v. Gordon(1821) 3 Swan. 400 : 19 R. R. 230 : 36 E. XL 910., which was repeatedly argued before Lord Eldon, tamely, that a family arrangement to be operative must be without fraud; it would not be supported if founded on mistake of either party to which the opposite party was an accessory; or if either party has been misled by the concealment of material thing, for the essence of the matter is mutual communication of all relevant circumstances. To the same effect are the decisions in Hoghton v. Hoghlon(1852) 15 Beav. 278 : 92 R. R.421 : 21 L. J.Ch. 482 : 17 Jur 99 : E R. 545.; Law ton v. Compion(1814), 18 Beav. 87 : 23 L. J. Ch 505 : 18 Jur. 8 : 2 W. R. 209 : 52 E. R. 35 : 23 L. T. (O s.) 20l : 104 R. R.378.; Bentlcy v. Mackey(1862) 31 Beav. 143 : 54 E. R. 1092 : 135 R. R. 145 affirmed on appeal 4 Do G. F.& J, 279;UO W. J. : 373,45 E. R. 1191. which show that a Court of Equity will not I remit a family arrangement to bind the parties when the transaction bas been unfair and founded upon falsehood or misrepresentation. Tested in the light of these principles, the position of the defendant is full of insoluble difficulties from which no ingenuity on the part of the most skilful legal adviser can extricate him.
33. As a list resort, it has been contended on behalf of the defendant that do relief should be granted to the plaintiff in the present suit as framed, inasmuch as the plaintiff who alleged fraud can succeed only on proof of the fraud specified in the plaint, and no variation between pleading and proof can be allowed. In support of this position, reference has been made to the following passage from the judgment in Bansiram v. Secretary of State35 Ihd. Cas. 284 : 20 C, W. N. 638 ' Two principles, it is well settled, are applicable in these circumstances. In the first place, as pointed out by he Judicial Committee in Guvga Narain Gupta V. Tiluckram Chowdhry15 1. A 119: 15 C. 533 : 12 Ind. Jur. 254 : 5 Bar. P. C. J, 168 : 7 Ind. Dec. (N. s.) 939 (P. C.). where reliance was placed upon the observations of Shelburne, L. 0. in Wallingford v. Mutual Society (1880) 5 App. Cas. 685 at p 697 : 50 L. J. Q. B 49;43L.T. 258:29W.R. 81. when a plaintiff impeaches a transaction on the ground of fraud, the fact which constitute the alleged fraud must be distinctly, specifically and accurately stated : Gisbert v. Lewis (1862) 1 De G.J. & S. 38 at p. 49 : 32 L. J. Ch. 347- 7 L. T. 541 : 11 W. B. 223 : 9 Jur. (n. s.) 187 : 2 J. & H 452: 46 R. R. 15 : 137 R. R. 138. for, in the language of Fry, J , in bed-grave v. Hurd(1881) 20Ch.D. 1 at p. 6 : 51 L. J. Ch. 113 : 45 L T.483 : 30W. B 251. it is only fair play between man and man that the defendant should know what is charged against him : Olyds-dale Bank v. Pa ton(1896) A. C. 381 : 65 L. J. P. C. 73 : 74 L. T. and Lurance v. Norreys(1890) 15 A. C 210 at p. 221 : 59 L. J. Ch. (681 : 02 L. T. 706: 38 W. R. 753-54 J. P. 738. In the second place, a charge of fraud mast be substantially proved as laid, and when one kind of fraud is charged, another kind of fraud cannot, upon failure of proof, be substituted for it: Abdul Hossein v. Charles Agnew Turner (89); the rule that the Court will grant only such relief as the plaintiff is entitled to upon the case made by his pleadings, is strictly enforced when the plaintiff relies upon fraud: Wilde v. Gibson (1848) 1 H. L. C. 605 : 12 Jur. 527 : 9 E. R. 897 : 73 R. R 191. and Hickson v. Lombard(1863)1 H. L. 324.. But there is plainly no real substance in the ontention in the circumstances of the present ligitation. The essence of the case for the plaintiff is that the defendant, who was her trusted brother-in-law, took advantages of her helpless situation as an illiterate parda-nashin Hindu widow and obtained her assent to a deed, the true effect whereof was not appreciated by her as she had no competent independent advise, It 'cannot thus be seriously maintained that there has been an infringement of the rule formulated by Lord Westbury in Eshenchunder Singh v. Sham churn Bhutto11 M.I. A. 7 : 6W.K. P. C. 57 : 2 Ind. Jur. (N. s.) 87 : 2 Sar. P. C. J. 209 : 20 E. R. 3., by Sir Barnes Peacock in Mylapere lakshmi Vyapoory Mulaliar v. Yeo Ray 14 I. A. 168 : 140. 801 : 11 Ind. Jur. 397 : 5 Sar. P. C. J. 50 : 7 Ind. Dec. (n. s.) 531 (P. C.). and by Sir Lawrence Jenkins in Venkatadri Likshmi Venkayyammx oin v. Venkatadri Appa Row59 Ind. Caa. 767 : 38 C. L. J. 171 : 25 C. W. N. 654: 19 A. L. J. 97 : 40 M. L. J 144 : 13 L. W 256 : (192 : M. W. N. 77 : 29 M. L. T. 161 : 23 Bom. h. R, 713 (P. C). that the determination in a cause should be founded upon a case either to be found in the pleadings or involved in or consistent with the case thereby made, nor can it be suggested that there has been any violation of the elementary rule of procedure laid down by Sir Barnes Pea nook in Abdul Hossein v. Gharles Agnew Turner141. A. lll B 620 : 5 Sar. P. C. J. 25 : 11 lad, Jur. 352 : 6 Ind. Dee, (n. s.) 408 (p. C) , and by Lord Shaw in Bal Gangadhar Tilak v. Shrinivds Pandit 29 Ind. Cas. 633 : 431. A. 135 at p. 151 : 39 B. 441 : 22 C. L. J. I at p. 19 : 13 A. U. .T. 527 : 29 0. W. X. 729 : 17 Bom. L. R. 57 : 23 M. h. J. 31 : 18 M. L. T, l : (1915) M. W, N. 484, 2 b W. 611(P. C.). that a charge of fraud must be substantially proved as laid, so that when one kind of fraud is charged, another kind of fraud cannot, upon failure of proof, be substituted for it. We must further bear in mind that every variance between pleading and proof is not fatal: the Court must carefully consider whether, in the words of the Judicial Committee is Radha Mohun v. Jadoomonee Dossee (96) the objection is one of form or of substance, The rule that the allegation and the proof must correspond is intended to serve a double purpose, namely, first, to apprise the defendant distinctly and specifically of the case he is nailed upon to answer, so that he may properly make his defense and may not be taken by surprise, and, secondly, to preserve an accurate record of the cause of action as a protection against a second proceedings founded upon the same allegations Tested from these points of view, the objection urged by the defendant proves to be groundless. There is no room for doubt that the contending parties fully appreciated the real points in issue and have adduced all the material evidence The fundamental point in controversy was really of a very simple character, namely, what were the circumstances under which the partition deed was executed Each side had. full opportunity to give in minute detail, its own version of the incidents, and the Court was called upon to deterring the true State of things from the conflicting narratives. There is plainly no question of surprise; but if it were necessary to adhere to matters of form with the strictest accuracy, the plaint could well have been amended to enable the Court to do that substantial justice between the parties for which alone Courts exist: Muhammad Zahoor Ali Khan v. Thakooranee Rutta Koer 11 M. I. A. 468 at p. 485 : 6 W. R. P. C. 9 : 2 Suth. P. C. J. 107 : 2 Sar. P. c. J. 320 : 20 E. R. 177. Sunitabala Debi v. Dhara Sundari Debi (48),Charan Das v. Amir Khan 57 Ind. Cas 606 : 47 I. A. 255 : 39 M. L. J. 95 : as M. L. T. 149 : 2 U. P. L. R. P. C.) 124 : 18 A. I : .1. 1095 : 22 Bom. L. R 1370 : 3 L. W. 4,9 : 25 C. W. N. 289 : 3 P. W. R. 1921 : 48 C. 110 P. C). and Ma Shwe Mya v. Maung Mo Hnaung 63 Ind. Cas 914 : (1921) M. W. N. 396 : 4 U, B. R. (1921) : 0 : 30 M. L. T. 28 : 48 C. 832 : 24 Bom, L. B. 682 (P. C.). In this connection, a well-known passage from the judgment of James, L.J. in Maxon V. Payne (1873) 8 Ch. 881 : 43 L. J. Ch. 240. may be usefully re called: 'A great part of the argument which was ad dressed to us on behalf of the defendant Payne was, that the case alleged against him by the till was one of gross and premeditated fraud, and that unless the actual fraud as alleged was proved, the bill must fail, It was contended that the plaintiffs were bound to make out, and had failed to make out, the case alleged in the tenth paragraph of the bill. It is true that when a case is based on fraud, the fraud must be proved, and no relief could be given in this suit on any different ground. But the obtaining of property, or of any benefit, through the undue and unconscientious abuse of influence by a person in whom trust and confidence are placed, has always been treated as a fraud of the gravest character; and if such frauds are alleged and proved, the allegation that they were parts of a scheme very early Conceived and deliberately carried out is, whether it be made out or not, of no material consequence in such a suit, it is at most a rhetorical exaggeration, which a person who commit the fraud, has no right to complain of If a man robs his fellow traveler, and is indicter for so doing, the allegation that he became the companion of this victim with a pre conceived design to rob him is wholly immaterial. Much the same line of defense was taken in the, case of Huguenin v. Baseley (1807) 14 Ves. 273 at p. 290 : 1 Wh. & T. L, C. (7th Ed.) 247 : 33 E, R. 526 : 9 R, R. 276, and it may be worth while to quote what Lord Eldon said in that case: I agree, further, that the relief must proceed upon what is alleged and proved by the parsons complaining, that their complaints must be treated as effectual or ineffectual according to' what they have, not what they could have, represented.... I have, therefore, looked through this bill with reference to the frame of it, and I have no doubt this case might have been more clearly reached if the situation of the parties had enabled them to go through all the difficulties as to amendment; also that many circumstances might have been brought forward on behalf of the defendants, which I am bound not to look at But, taking the cafe as it stands, though there is in this bill much foul allegation, which, if not true, ought not to be there, and a great deal of which is denied and clearly disproved, there is enough upon the bill and in evidence to show that this deed cannot stand, if the whole transaction taken together cannot stand.
34. In my judgment, the Subordinate Judge was unquestionably right in his conclusion that the defendant obtained the partition deed from the plaintiff by an untrue representation that its terms were in conformity with the last wishes of her husband, as well as by a concealment of the true extent of the assets of the family business and the value of the family properties; be also took advantage of her distressed condition during the period of mourning immediately after she had lost her husband; she bad forever no competent independent deviate as to the nature, value and extent of her rights in the estate left by the deceased and the true effect of the deed upon her position as his heiress, In these circumstances, she was entitled substantially to the reliefs granted by the decree of the Subordinate Judge.
35. The result is that the decree of the Trial Court must be affirmed and this appeal dismissed with costs. The memorandum of cross-objection is rejected without costs.
36. This appeal is against the judgment and decree in a suit brought by one Srimaty Kalidasi Dan to have it declared that a deed described in the plaint as a partition deed, executed by her on the 4th November 1915 in favour of the appellant, Satis Chandra Ghose. is fraudulent and void and to have it canceled and for partition of the immoveable property mentioned in the schedule to the plaint and to recover a hardware business in Calcutta to which she alleges the is entitled as widow of her deceased husband. One Gobinda Chandra Ghose who died in November 1913 left two 'one-Kedar Naih Ghose and Satis Chandra Ghose, The latter is the appellant. Kedar Nath was the husband of the plaintiff and by her he bad two daughters-Chinabala and Nalinibaia the plaintiff: has two brothers .ailed Kamini Kumar and Raj Kumar and this completes the list of the relatives of the parties whoso comes have bean intro-ranaed into the case, The learned Suborn-die ate Judge has found that the said ware business was the property of Gobinda Ghose on whose death his two sons inherited it jointly. the rest order, t who claimed the whole of this lousiness has abandoned his -objection on this point and it is not necessary further to consider the question.
37. The respondent's Base is that shortly after the death of her husband Kedar Nath Ghose, which took place on the 7th October 1995, the appellant came to her and asked her to entrust him with the management of the hardware business, To this she says that she agreed. The deed of the 4th November 1915 was prepared; it was signed by the respondent by the pen of her daughter Chinabala; no explanation of its terms was given, nor was the deed read over to her. On the 8th December it was registered, again without explanation. After registration the respondent disclosed the existences of the deed to her brother Raj Kumar who took her to talk and said that he would obtain a copy of it and sea her about the matter. This Raj Kumar did and told her that Satis had defrauded her of everything. Subsequently, on the 25th June 19l6 she filed this suit. This is the broad outline of the respondent's story as told by her and her witnesses. It is not necessary to analyses this case in detail because the Subordinate Judge himself has paid very little attention to it. It is not , possible) to say from his judgment , what view be takes of it, for be deals exclusively with the case made by the appellant. He has refused to case the appellant' case in all its details, but he bas treated h as representing more or less what took place and he finds in language admitting of no ambiguity that taking the ease made by the appellant substantially to represent what assured, fraud was practised on the respondent in whose favour be bas made a decree letting aside the died of the 4th November 1915.
38. It bas been argued by the learned Advocate-General on behalf of the appellant that in a case of fraud, it will not affair to find fraud otherwise than as alleged on behalf of the plaintiff, and that even should the Court find that fraud was practised, if such fraud is other than the fraud alleged the defender t is entitled to have the suit dismissed. This, is a proposition which may be appl cable in Banes between man and man, or, stated more appropriately to this case, where a pardanashin lady is not concerned. But where a pardanashin lady is involved, other and equally well-known rules have to be applied and conformity with them has to be established. As I read the judgment of the learned Subordinate Judge, it is according to these rules that he has found that the appellant fails even assuming his case to be true. I propose, therefore, to state the history of the matter and examine it from this point of view.
39. For some years before his death Kedar Nath Ghose bad been an invalid and at the time of his death he was bed-ridden. He had spoken to his wife some two or three days before his death about a Will, and on or about the 28th or 30th September a draft Will was prepared for him. The materiality of the Will which Kedar Nath intended to execute arises from the cram-stance that the case put forward by the appellant in his written statement and in the evidence is that it was in order to give effect by deed to the wishes of her deceased husband) which the intervention of death prevented him from tarrying out by Will, the respondent exacted the instrument which is the occasion of these proceedings. The draftsman of the Will was Agora Nath Maiti, a man who describes himself as a trader, dealing in building materials and also with deeds, who has been tailed as a witness for the appellant: Aghore Maiti's evidence is that he was summoned by one Ashutosh Banerjee to write out the Will: that Kedar Babu stated his intentions at some of which Ashutosh Banerjee protested and after discussion with Asutosh Banerjee he wrote out the terms. This draft has been pro doused. It contains a number of alterations but it has not been proved by whom these alterations were made. Aghore Maiti did not make them, though he says they were made on the same day as the draft was written, bat he cannot say by whom. The suggestion is that the alterations were made by Asutosh Banerjee who, however, has not been called by either side though present at the trial of the suit. The importance of these alterations will appear later. The Will was fair copied on the 6th October. This appears from the evidence of the appellant, and of a witness named Boloram Ganguly, an attesting witness to the deed in suit. This man says that on the day preceding the death of Kedar he went to Kedar's house where he saw Akhoy Ghose, Jotin Ghose, Shyama Charau Bhadari, Asutosh Banerjee and Raj Kumar Dhoti. The document was being dictated by Akhoy Ghose to his son Join who was writing a fair copy. This fair copy has not been produced and no explanation of the omission to produce it is forthcoming. On the 7th October Kedar Nath Ghose died without having executed the Will, though on the morning of that day the several persons whom I have named, a Pleader sailed Badal Chandra Ghose, the Doctor Sarat Chandra Das, and a parson of the name of Pulin Behary Mondal, had collected, most of them for the purpose of being present at the execution of the document. But nothing could be done as Kedar had becoms unconscious. Kedar died and died so intestate. The appellant and also Asutosh Banerjee and Jaharilal Bhadari then asked what was to be done. Whereupon a suggestion was made by Badal Chandra Ghose that as the Will could not be executed, a deed which in his evidence he called a deed of family arrangement might be exacted in its terms. This suggestion was made in the absence, it is to be observed, of the respondent. All of this is most significant : it suggests the thought that the death of Kedar Nath Ghose intestate was regarded by these persons as a catastrophe, so far as be could do aught to remedy it. Badal Chan-dra-Ghose lost no time and he then and there, as he says, distasted a draft to Akhoy Ghose's son Jotindra. This draft too is not forthcoming nor is its absence explained. Some few days later the appellant suggested to the respondent that a deed should be executed. Ha made the suggestion at a time when expenses to be incurred for the Sradh of Kedar Nath Ghose were under dissuasion. The respondent was most anxious that a feeding of the poor should take place. This appears to have afforded to the appellant the opportunity which he desired. For he demurred and said he would consent if the respondent would excite what he sailed a family arrangement. A number of persons whom it is unnecessary to specify, their names recur throughout the evidence at each stage of the incidents leading up to the final conclusion, also met and discussed the matter with the appellant and respondent. As regards' this discussion, suffice it to say that id related to arrangements regarding the immoveable property, and that according to the witness, Fakir Chandra Ghose the respondent intimated that if the Sradh would only cost Rs. 5.000 or Bs. 6,000, she would execute a deed in accordance with the terms of the Will which her husband had proposed to execute. There appears to have been more than one such interview with the respondent 88 the appellant says that terms were discussed in his pretense while Fakir Chandra Ghose says: ' We came back and told Sates that Kalidasi bad agreed.' It is not a simple matter to disentangle the evidence as to these several interviews, but on each occaeion the appellant's adherents were present and the impression on my mind, whether or no she was alive to her own interests, or advised as to them, a point I shall deal with hereafter, is that the respondent was being importuned in the interests of the appellant to put her hand to the document which he was anxious to obtain. The appellant says that the respondent agreed to certain terms and, accordingly, in furtherance of the project, on the following day a draft of the Will of Kedar and the draft deed prepared by Badal Babu and ' perhaps also the fair copy of the Will' were made over to an individual of the name of Nilmony Bose to prepare a 'partition deed' in the terms arranged. Nilmony Bose has not been called as a witness and the explanation given for his absence from the witness-box, that he was travelling to Waltair, is wholly insufficient. His evidence might have thrown some light upon the failure to produce the draft prepared by Badal Chandra Ghose and the fair copy of the Will. The importance of the omission to produce these papers lies in the fact that, as already stated, it is the appellant's case that, subject to such alterations as were agreed upon between him and the respondent, the object of the deed was merely to give effect $o the wishes of Kedar Nath Ghose which the deceased had not been able to carry out before his death. The learned Subordinate Judge has found that the alterations in the draft of the Will were interpolated subsequently in order to bring the Will into conformity with the partition deed. The alterations in the draft in various respects are not such as one would expect to find in a Will but are such as might well find a place there if the draft Will had been used as a rough draft for the purpose of engrafting upon it the deed of partition. This does not improve the position for the appellant and it is not necessary, to come to any definite conclusion one way or the other. But the appellant's case being what it is, that the draft Will as altered and the deed in suit represent the testamentary wishes of the deceased, the omission to produce the fair copy of the Will and the draft prepared by Badal Chandra Ghose suggests the inference that were they produced they would show that neither the fair copy of the Will nor the draft partition deed were in accordance with the Will which Kedar Nath Ghose intended to execute. This omission and the failure fully to explain their con-production throw the gravest suspicion on the appellant's case.
40. About the time when Nilmoni Bose has been told to prepare a draft, in particular on the 19th October, the appellant, who had charge of the hardware business in Calcutta drew from the National Bank of India practically the whole of the wish balance of the business which stood in Kedat's name amounting to Rs. 11,00C and transferred it to an account in his own came at the Mercantile Bank of India. At that time, of course, the respondent knew nothing about this. It came to light in circumstances to which I shall presently refer. Four or five days after receiving instructions Nilmoni produced a draft which according to the appellant was read over and explained to the respondent on the 25th October 1915 in the presence of some ten persons by Fakir Chandra Ghose, who also explained it. The draft was approved and executed by the respondent through her daughter Chinabala. Fakir again lent his services in the earns manner some days later when the fair copy was executed by the parties in similar fashion as regards the respondent. That took place on the 4th November 1915. On the 8th December the deed was registered. A Vakil of the name of Bhupendra Nath Bose has been sailed to support this part of the case and he produced a diary in which he had made a note as to his presence on the occasion and the reading over of the document to the respondent by one Shyama Charan Bhaduri. There is nothing in the note to show that the document was explained to the respondent on that occasion in the manner in which that, should have been done and this witness's evidence does not carry the ease for the appellant very far.
41. Raj Kumar having been informed by his sister of what had occurred, obtained a copy of the deed, which he says he procured on the 22nd or 23rd January 1916. On the 26th January he borrowed a sum of Rs 2,000 from the appellant the significance of which will have to be considered in dealing with his connection with this affair. On the 31st January, the respondent made an application to the Court of the Subordinate Judge for a Succession Certificate to enable her to realise a sum of Rs. 2,825 for which her late husband had been insured in the Phoenix Insurance Company Ltd. On the 23rd February she filed a further petition' asking that Government Promissory Notes of the total approximate value of Rs. 7,500 should be included in the application. Raj Kumar Deoti signel this application on behalf of the respondent The need far the application, according to Raj Kumar, was that his sister was going to bring a suit to sat the deed aside which would cost a good deal of money, and in order to raise funds he made enquiries and from those made at the Bank, it same to his knowledge that the appellant had withdrawn Rs. 11,000 and was about to withdraw the Government Promissory Notes. From the Insurance Co., he learnt that a Succession Certificate would be necessary before the money could be paid. While this application was pending events took a singular turn, for Raj Kumar, who professes to have bean interested in securing for his sister her just rights, entered into negotiations with the appellant for the preparation and execution by the respondent of a deed to supplement the partition deed by making provision as regards items of property not comprised in it; in particular the items which were the subject of the application for the Succession Certificate. Raj Kumar says he asked Satis to make a draft but at no time did he consult his sister in the matter. The appellant's evidence as to this is that Raj Kumar asked him whether a supplemental deed should be executed with regard to the Government Promissory Notes and the life policy which had bean omitted from the partition deed. A draft 'was accordingly prepared and made over to'Raj Kumar. Then, according to the appellant, Raj Kumar told him that if he would discharge him from a debt of Rs. 3,500 which Raj Kumar owed him he would allow the respondent to execute it, otherwise he would prevent her from so doing. The statement,' considered in the light of all the evidence, has the ring of truth about it. But, as will be seen when I discuss Raj *,' Kumar's position in relation to his sister and the deed in suit, so far from helping the appellant it militates against his success. 'Our attention has been drawn at some length to the details of the supplemental deed and errors in and omissions from the original deed which an examination of the supplemental deed discloses. For instance the valuation of the hardware business in Calcutta is given in the deed of the 4th November as Rs. 31,000, while from the supplemental deed the net value appears to be 56,851 rupees. It is admitted by the supplemental deed that mistakes have been made in incorporating certain matters in the deed of the 4th November; and in his evidence the appellant admitted the incorrectness of the valuation of the properties mentioned in the first deed. The supplemental deed was never executed. On the 8th April 1916 the appellant objected to the respondent obtaining a Succession Certificate and himself filed a petition to the Subordinate Judge for a Succession Certificate in respect of the Government Promissory Notes. In ' that petition he stated that he was the reversionary heir and claimed the sums in question as such, making no mention either of the partition deed or of the agreement only recently entered into for a supplemental deed. On the 16th May, the appellant filed a suit against Raj Kumar Deoti to recover Rs. 3,668-4-0 borrowed by him which sum included the Ra. 2,000 borrowed on the 26th January 1916, On the 18th of May, according to the appellant's deposition in the proceedings for a Succession Certificate, the respondent executed the am-mukhtearnama in favour of Raj Kumar, On the 20th May the applications for Succession Certificates were disposed of and the Court ordered that a Succession Certificate should issue to the appellant as regards the Government Promissory Notes and as regards the insurance money to the widow. On the 28th June of the same year the suit which has resulted in this appeal was filed. This is the ease which the Subordinate Judge has considered and which he says is a fraud on the respondent.
42. The rules laid down by a long series of decisions for the, protection of pardanashin ladies are well-established and it is unnecessary that I should repeat them, It is with their application that we are concerned and we have to consider whether or not those rules were observed in the circumstances in which the deed in question was executed. In my opinion, they were not. I have already indicated what the course of events suggests to my mind with reference to the Will. That the appellant was aware of the contents of the proposed Will I have no doubt, nor that his disappointment that it had not been executed was intense. But there was no need for the execution of a deed such as this immediately after the death of the husband of the respondent. There was no dispute and no 'family arrangement' was necessary. But immediately her husband had died the respondent was importuned by the appellant and his adherents to execute this deed. That he was his opportunity when she wanted a considerable sum to be spent in feeding the poor 1 feel convinced. The business which was the source of her income was in his hands, The Sradh ceremony had to be performed. Whatever her rights may have been money had to he forthcoming at once for the purpose. Accordingly, she agreed to the proposal, thinking that she was but giving effect to her husband's wishes. That she was doing so is extremely doubtful, either on the view taken by the Subordinate Judge as to the draft Will, or in the view to which I incline. But in any event she was entitled to be held by the appellant at arm's length and to receive independent advice and this is the point upon our view as to which the decision of the appeal must depend. There is nothing to show that the respondent ever had independent advice. That a parda-nashinllady must have independent legal advice is not necessary as an inflexible rule. But what 1 conceive to be the effect of the decisions is that, excluding those race cases where the experience and attainments of the lady or the circumstances of the case render advice superfluous, a pardanashin lady must have advice, that the advisor should have no adverse interest, and should be such a person as is capable of explaining to her fully her rights in general and in particular under the document which she intends to sign, if necessary, contrasting them with her rights should the intended document not be executed by her : if the circumstances are such that unless he has a knowledge of law he is not competent to advise her, then and in that case independent legal advice is essential. Considerable argument has been addressed to us on behalf of both parties as to the need for independent legal advice in this case. I am not prepared to say that it was not necessary. But inasmuch as I am of opinion that the lady had no independent advice at all, it is unnecessary to consider that aspect of the matter. All that has been proved, assuming the evidence to be true, is that the document was read to her; for I cannot give any weight to bald assertions that the document was explained without details of what such explanation consisted of. It has not been proved that she was aware what her rights were apart from the document, or that she was giving up any rights for what she obtained. It has been argued by the learned Advocate-General that she knew her rights, and that the discussions with her prior to the execution of the draft establish this. But this I do not think is the case. She was undoubtedly aware that the source of her income was the hardware business in Calcutta, but it has not been established that she knew what her rights were as a Hindu widow either with reference to the business or with reference to the immoveable; or that she knew what she was giving up or what she was to obtain in return or the legal consequercss of what she was doing, Yet these were matters of which she was entitled to be and ought to have been made fully cognisant. Who would naturally have been the people to explain matters to the respondent The document which she was executing was for the benefit of her husband's brother. Ordinarily he would be the person whose duty it would be to protect her interests. In the circumstances she would turn to her own nearest male relatives. These are Kamini and Raj Kumar, But Kamini hardly tomes into the case. It has not been suggested that ha took the slightest interest in his sister's affairs and ho may be ignored. What was Raj Kumar's position in the matter? He says that he heard about the deed from his sister. He obtained a copy of it from the Registration Office. He says that he brought it and told her that she had been defrauded. Taking those statements as an index to his state of mind in January, how is it to be explained that in March he was entering into negotiations with the appellant for the execution by the respondent of a supplemental deed with reference to which he never consulted his sister at any time? He was a man who, it must be borne in mind, was in debt to the appellant, It would have been a matter for surprise had he advised his sister to execute the supplemental deed, At the same time as he was thus negotiating he was lending his sister his support in her application for a Succession Certificate. His attitude with regard to the supplemental deed and the Succession Certificate cannot be reconciled with his conduct with reference to the deed as soon as he had obtained a copy, of it. In May the appellant filed a suit against. Raj Kumar responded who by obtaining an am-muktearnama from his sister for the purpose of filing this suit, From that time onwards Raj Kumar sided with the respondent. It is quite impossible to regard Raj Kumar as a disinterested person, So far from being disinterested, I think that it is abundantly clsar that throughout the whole period till the 18th May ha was actuated solely by self-interest. Raj Kumar is stated by the appellant and his witness to have been present on the various oco(sic)sions when the maket was discussed with the respondent In the view that I take of Raj Kumar coruscation with and attitude towards this matter, it is quite possible that he was there, Bat that he was advising his sister and acting in her interests, 1 do not think is in the least degree probable. So far from that being the case I think that the inference which may vary fairly be drawn from the facts and circumstances is that he was fathering the interests of the appellant for his ownadvinage in the first instance and that he eventually sided with his sister when the institution of the suit for Rs. 3,668 4 0 showed him that the appellant was not prepared to treat him favorably. It is impossile, on a view of the evidence most favourable to the appellant, to take the view that Raj Kumar Decti is a parson who can be regarded as an independent adviser of the respondent.
43. I concur in the order to be made.