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Appeal from Original Decree No. 22 of 1945, decided on 19th March 1953, against the decree of Mr. V. Hossain Molla, Subordinate judge, 5th Court, District Dacca, dated the 12th May 1944 in Title Suit No. 3 of 1944.
S. 16‑' Undue influence" "Dominate" ‑‑‑Meaning of ‑Onus of proof.
The present suit was filed for declaration that the deed of gift executed by husband in favour of his wife was illegal, inoperative and void on the ground that it had been obtained by undue influence and coercion.
Held, the first thing to be considered in the relationship between the parties. that is to say, whether one party was in a position to dominate over the other, and then it must be proved that the position was used to obtain an unfair advantage and even though the transaction may be un conscionable, relief cannot be granted until the initial fact of the position to dominate the will is established. If such position is proved and the transaction also appears to be unconscionable, the burden of proof that the contract was not induced‑ by undue influence lies on the person in a position to dominate the will of the other.
" Undue influence" is not established by proof of the relation of the parties having been such that the one naturally relied upon the other for advice and the other was in a position to dominate the will of the first in giving it. Up to that point " influence " alone has been made out. Such influ ence may be used wisely, judicially and helpfully.
To prove " undue influence " it must be established that the person in a position of domination has used that position to obtain unfair advantage for himself and so to cause injury to the person relying upon his authority or aid. And where the relation of influence is established, and the second thing is also made clear, viz., that the bargain is with the influence and in itself unconscionable then the person in a position to use his dominating power has the burden thrown upon him and it is a heavy burden of establishing affirmatively that no domination was practised so as to bring about the transaction.
S: 42‑Application and interpretation.
In the present case the deed of gift in question was tainted with undue influence and was therefore void, illegal and inoperative and the present suit was not barred under section 42 of the Specific Relief Act.
Held, a suit by a reversioner immediate or remote for declaring an alienation by the widow void is not barred under section 42 of the Specific Relief Act.
Prakash Chandra‑ Pakrasi and Sureshchandra Basu for Appellant.
Gopal Chandra Das, Priyanath Bhattachayya and Nandlal Das for Respondents.
‑This appeal arises out of Title Suit No. 18 of 1942 of the Court of the Subordinate Judge, 1st Court, Dacca. The suit was by one Bidhu Mukhi Dassya, widowed daughter of one Bepin Behary Roy for declaring a deed of gift executed by the latter in favour of the defendant No. 1 Sarala Sundari, his wife, void and illegal on the ground that it had been obtained by undue influence and coercion.
Facts relevant for the purpose of this appeal may briefly be put thus: Bepin Behary Roy of Kali Charan Saha Road, Dacca, had hard cash, Government promissory notes, shares of various' limited companies and immovable properties. His first wife Hemangini Dassya. Died leaving behind the plaintiff Bidhu Mukhi Dassya and, Pro forma defendant No, 2, Sashi Mukhi Dassya two daughters and after her death defendant "No. 1 Sarala Sundari came to Bepin's house as his second wife. Plaintiff was given away in marriage, to one Kanailal and of this wedlock three sons Krista Gopal, Ram Gopal and Brojo Gopal and one daughter Indu Mati were born. Shortly after the birth of Indu Mati, Bidhu Mukhi became widow. Pro forma defendant No: 2 Sashi Mukhi had two daughters, Brinda Rani and Radha Rani and a male child died soon after its birth.
Bepin had no child by his second wife Sarala Sundari, and in normal course in the absence of any effective absolute gift by him Sarala Sundari under the Dayabagha School of Hindu Law by which the family was governed would have on her husband's death inherited all his properties as her life estate and thereafter the plaintiff would have inherited the properties as limited owner and on her, death the properties would have gone to her sons absolutely as rever sioners of Bepin, The pro forma defendant No. 2 Sashi Mukhi being the sonless widowed daughter was not entitled to any property of Bepin.
After Sarala Sundari had passed her child bearing age she tried to adopt a son but could not succeed on account of reluctance on the part of her husband whose intention throughout was to spend part of his money for charitable and other purposes and whatever properties would remain would go first to his wife for life' and then' to plaintiff Bidhu M.akhi for life and then to the latter's sons. Krishna Gopai, Rain Gopalyand Brojo Gopal absolutely. Bepin's philanthropic work started after his retirement from service and in the middle of 1928 he set up electric installation at the Postagola Burning Ghat under the Dacca Municipality at a considerable cost for benefit of the public and in 1932‑33 he built a two storied pucca building in his Faridabad locality and started a free Primary School therein in his own name. Defendant No. 1, however, could not look upon these acts of charity with graceful approval and began to coerce her husband to make an absolute gift in respect of all his properties in her favour so that her only brother Dinabandhu Das and on his death his only son Radhasyam might enjoy the properties. Being unable to bear the brunt of coercion, Bepin had to make improvement of the village house of Sarala's brother by converting it into two‑storied in 1345‑1346 B.S. at his own cost amounting to about rupees three thousand. From Baisak, 1347 B. S., Bepin's health began to deteriorate due to old age and high blood‑pressure and many other complicated diseases and taking advantage of his physical and mental weakness Sarala by undue influence and threat induced him to endorse Government security notes in her favour in Poush, 1347 B.S. She did not stop there. On the 5th Sraban, 1348 B.S. (21st July 1941), she at the instigation of her brother Dinabandhu launched another attack on her old ailing husband and induced him to execute a deed of gift in her favour in respect of all his properties together with authority to adopt a son without the knowledge of the plaintiff and her sons and well‑wishers. The plan to obtain a gift from Bepin was conceived by a coterie of designing people long before Bepin's death in an atmosphere . surcharged with ugly conspiracy but it could not be materialised till Bepin became enfeebled with age and protracted illness. The terms of the deed on the face of it are so remarkably unconscionable that one would feel convinced that Bepin was induced to accede to the terms by undue influence. The plaintiff's interest in paternal properties having been clouded by the deed of gift, she brought this action purely for declaring the document illegal, void and inoperative.
Only defendant No. 1 contested the suit. She denied the plaintiff's allegation of undue influence and coercion and also contended that the suit was barred under section 42 of the Specific Relief Act and further averred that in 1331 B.S. Bepin had executed a Will by which he had given away to defendant No. 1 one of the immovable properties in absolute right and the remaining properties for life and further authorised her to adopt three sons successively but that subsequently he revoked the Will and in place thereof executed the deed of gift in question and a separate deed of authority to adopt of her free will.
The pro‑defendant No. 2 also entered appearance and also filed a separate written statement supporting the defence of defendant No. 1.
The learned Subordinate judge after review of the materials furnished by the parties found that the terms of the deed of gift were not unconscionable and that the plaintiff': allegation that the defendant No. 1 induced Bepin to execute, the deed of gift by coercion and undue influence got no foundation at all and on these findings he dismissed the suit. Then followed the present appeal, appellant being the plaintiff.
The only point urged is that the learned Subordinate judge was not justified in dismissing the suit though there were sufficient materials on the record justifying the inference that the deed of gift had been obtained by coercion and undue influence at a time when Bepin was enfeebled with age and illness. Before entering into discussion of the point raised we feel we should give here particulars of the family of the grantor, namely, Bepin Behary Roy and his near relations and other relevant facts for the purpose of enabling those interested in the decision of the case to follow it properly. Bepin started his life as a traveling agent of Messrs Oslar & Co. and in that capacity he earned consider able properties both movable and immovable. While in service he used to live in Calcutta but after his retirement ho shifted to Dacca with his family and began to live in his own house at Kali Charan Saha Road, Dacca, and died there on the 20th Agrahayan, 1348 B.S. corresponding to 6th December 1941, at the age of 85 or 86 Bepin was born in 1858 and on attaining majority he married Hemangini Dassya and by her he got two daughters, viz., plaintiff Bidhu Mukhi and pro forma defendant No. 2 Sashi Mukhi of whom the former (Bidhu Mukhi) was born in 1877 and the latter (Sushi Mukhi) in 1882. About five years after, the birth of Sashi Mukhi, Hemangini died and in 1888 i,e., about a year after Hemangini's death, Bidhu Mukhi was given away in marriage to one Kanailal Das of 17/1, Ram Charan Lane, Dacca, about ten minutes' walk from the house of Bepin Behary Roy. In the same year Bepin married the defendant No. 1, Sarala Sundari, then aged about 12. Bepin was then aged about thirty‑one. Kanailal died in 1904 leaving behind plaintiff. Bidhu Mukhi, a widow, a daughter named Indu Mati, wife of P. W. 4 Nagendra, and three sons Kristo Gopal, Ram Gopal and Brojo Gopal of whom Ram Gopal died in 1941 leaving behind a widow and a son and Brojo Gopal died an 1942, that is, long after Bepin's death, Sashi Mukhij was given away in marriage to one Rai Mohan but after the death of her father‑in‑law she on account of bankruptcy of her husband had to shift to her paternal house with her husband. She became widow in 1901, that is, about three years before the commencement of the widowhood of her elder sister, with two daughters Brinda Rani and Radha Rani. She had also a son but he died after a few hours after his birth. Radha Rani was married to one Krishna Das who died leaving behind a daughter Subhasini, wife of D. W. 2 Radhashyam, son of Dinabandhu, brother of Sarala. An examination of the record discloses that Bidhu Mukhi, Sashi Mukhi and Dinabandhu and the latter's son Radhashyam were all living as parasites on Bepin's family but a tussle was going on between Bidhu Mukhi on one side and Sarala Sundari, Sashi Mukhi, Dinabandhu and Radhashyam on the other from long before Bepin's death, over his property. Sarala Sundari demonstrated a tendency to monopolise the husband's property with an ulterior motive of ‑alienating the same to her paternal relations, namely, her brother and brother's son and Sushi Mukhi being helpless widow pledged an oath of allegiance to her unconditionally in order to protect herself and her grandson‑in‑law, Radhashyam but Bepin proved too strong for the lady and refused to yield to the unreasonable demand of his wife. This stiffness, however, could not subdue the ever increasing lust for worldly gain and anxiety for the amelioration of the financial position of her paternal relation but she went on hammering her husband for a document till in 1924 she succeeded in obtaining a Will in her favour only in respect of one item of property. The will runs as follows :
"Life is transitory; nobody knows what will happen when. Now, being in good health and sound mind, I think that I should make arrangement for all my movable and immovable properties, and in the following manner I have made arrangement for enjoyment and possession of my movable and immovable properties, the said arrangements will take effect after my death.
' My first wife is dead. My second wife Srimati Sarala Sundari Dassya is alive. By this Will I have made this arrangement that after my death the said wife of mine will be in absolute ownership and possession of the properties described in the schedule below owned and possessed by me, with the right of exercising the power of gift and sale, and besides this, my said wife will enjoy and possess all other movable and immovable properties left by me during her life time till her death; but she will not be able to gift away or sell the said properties. After my death my said wife Srimati Sarala Sundari Dassya will take in adoption three sons in succession one after the death of another. After the death of my wife said adopted son will be in absolute ownership and possession of the properties left by me . . . . . . . . . . . . . . . . . . . . . . If my said adopted son separate from my wife, then he will get a monthly allowance of Rs. 20 from the properties left by me. Besides this, during the lifetime of my wife; he will clot get anything more from the properties left by me. If my‑wife does not take a son in adoption or if the adopted son dies childless during the lifetime of my wife, then my two daughters and my other heirs will get my entire pro perties in the manner stated below. My first wife Hemangini Dassya is dead. Her two daughters Bidhu Mukhi Dassya and Sashi Mukhi Dassya are alive. Both these daughters of mine are widows. My first daughter Bidliu Mukhi has got three sons (1) Krishna Gopal. Das; (2) Ram. Gopal Das, (3) Brojo Gopal Das who are, alive. My grandson Ram Gopal Das is of very bad character and has wasted a large amount of money. My two other grandsons are of good character and both of them are earning. My other daughter Sashi Mukhi Dassya is a widow and she is being maintained by me in: my house . . . . . Sashi Mukhi Dassya can, live in my homestead during her lifetime. If, for any reason or other my said daughter falls out with my wife, then my said daughter will be able to use separately two rooms to the east of my homestead and one kitchen and well and privy, and my wife and my said adopted son will be bound to look to the comfort of her living and after my death my adopted son will be bound to look to her comforts.
"By this Will I make this arrangement that after the, death of my wife, my said adopted son will be in ownership and possession in absolute right of all the properties left by me with power to gift and sell the said properties. If my said adopted son dies childless during the lifetime of my wife, then after the death of my wife; my said two daughters will get all my movable and immovable properties for life and possess and enjoy the same during their lifetime and after the death of my one daughter, my other daughter will possess and enjoy all the properties left by me during her lifetime. None of them will be entitled to gift away or sell or transfer the same. After the death of my two daughters, my grandsons Sreeman Krishna Gopal Das and Sreeman Brojo Gopal Das together 'with their sons, grandsons, heirs and representatives will each have 5 as. 6 gads. 2 karas 2 krauts share in absolute right and enjoy and possess the same with power to gift away and sell the same and Srimati Raj Lakshi Dassya wife of my grandson Sreeman Ram Gopal Das, will get the remaining 5 annas 6 pandas 2 karas 2 krauts share, for life and will possess and enjoy the same during her lifetime, but she will not be entitled to gift away, sell or transfer the said properties in any manner. After the death of my grandson Sreeman Ram Gopal Das, if any son or sons are born to him and are found alive, at that time, then he or they will get in equal shares, the said 5 arenas 6 gandas 2 karas 2 krauts share of the remaining properties left by me and my wife and will be in ownership and possession of the same in absolute right. After their death my other two grandson: will be in ownership and possession of the said share in equal shares in absolute right.
"In order to make the terms of this Will effective I appoint my wife Srimati Sarala Sundari Dassya executrix to this Will. She will take Probate of this Will without giving any security and act according to the terms of this Will. This is my last Will and I execute this Will being in sound mind and body and being acquainted with all the circumstances. Finis. 11th Bhadra, 1331 B.S., corres ponding to the 27th August 1924.
"The rented Pucca house owned and possessed by me, being holding No. 42, Malakartola Road, in Ward No. 1 on the north‑south of the slope of the Main Road, on the east‑west of the contiguous land of Rama Nath Babu, on the south Malakartola Lane, on the west home‑stead of Jadu Nath De and contiguous to the Khoar of the Municipality.
Written by self.
Bepin Behary Roy
Jogesh Chandra Guha, Pleader, 22nd Rup Chand Lane, Dacca.
Kunja Lal Das, 21, Rup Chand Lane, Dacca.
Dina Bandhu Saha of Baghair.
Ganga Charan Das, Kaparianagar.
Sarat Chandra Das of Kaparianagar.
Nitya Lal Das, 21, Farashganj, Dacca.
Nagendra Chandra Das of Kaparianagar."
Sarala was made executrix of the Will, given a pucca house and further authorised to enjoy during her lifetime whatever properties her husband would leave. The provision made by the Will was enough for a widow but Sarala won't he satisfied. The plaintiff came up with the allegation that Satala even after the will went on pressing the husband for an absolute gift and that the pressure was not relaxed till the deed of gift in question was executed. It was further alleged that the gift had been obtained by coercion, undue influence at a time when Bepin was bedridden and counting his days due to extreme old age, blood pressure, occasional fever and other diseases. This was stoutly denied by the defendant, No. 1.
At the trial a controversy over the question of onus of proof arose and the trial Court found that onus lay on: 'the plaintiff. This, has been taken exception to by the learned Advocate for he defendant respondent whose contention is that the transaction on the face of‑ it being unconscionable, the trial Judge erred in law in throwing the burden of proof on the plaintiff. In support of his contention he relies on section 16 of the Contract Act and also on the decision in the case of Bhola Nath. Shah v. Bhola Nath Sen. and another (40 C L J 393).
In order to appraise the worth of the appellant's contention it is necessary that we should first look into the section relied on, namely, section 16 of the Contract Act. The section runs as follows
" (1) A Contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another‑
(a) Where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) Where he makes a contract with a person whose mental capacity is temporarily or permanently effected by, reason of age, illness or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other."
On careful survey of the section it seems clear that under subsection 1 of the section, three things must be proved before a contract can be said to be induced by undue influence, namely, (1) that the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other ; (2) that he uses that position ; and (3) that an unfair advantage over the other has been obtained 6y the use of that position Subsection (2) lays down rules for determining under what circumstances a person can be said to be in a position to dominate the will of another, and subsection (3) lays down that in a case where a person in a position to dominate the will of another, enters into a contract with him and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the onus of proving that the Contract was not induced by undue influence rests on the person in a position to dominate the will of the other. The learned Advocate for the appellant takes his stand on the last mentioned subsection, namely, sub section (3).
In order to determine the question of onus in a case attracted by section 16 (b) the first thing to be considered is the relationship between the parties, that is to say, whether one party was in a position to dominate over the other, and then it must be proved that that position was used to obtain an unfair advantage and even though the transaction may be unconscionable, relief cannot be granted until the initial fact of the position to dominate the will is established. If such position is proved and the transaction also appears to be unconscionable the burden of proof that the contract was not induced by undue influence lies on the person in a position to dominate the will of the other. This view will find support s in the decision of the case of Poosathurai v. Kannappa Chettiar (AIR1920PC65), where Lord Shaw observed as follows
"Undue influence is not established by proof of the relations of the parties having been such that the one naturally relied upon the other for advice and the other was, in a position to dominate the will of the first in giving it. Up to that point 'influence alone has been made out. Such influence may be used wisely, judicially and helpfully. But whether by the law of India or the law of England, more than mere influence must be proved so as to render influence in the language of the law 'undue'. It must be established that the person in a position of domination has used that position to obtain unfair advantage for himself and so to cause injury to the person relying upon his authority or aid. End where the relation of influence, as above set forth has been established, and the second thing is also made clear, viz., that the bargain is with the 'influencer", and in itself unconscionable then the person in a position to use his dominating power has the burden thrown upon him, and it is a heavy burden of establishing affirmatively that no domination was practised so as to bring about the transaction, but the grantor of the deed was scrupulously advised in the independence of a free agent."
What, therefore, follows is that the burden of proof lies in the first instance on the party who raises that plea. If that party proves that the other party was not only in a position to dominate his will, but that the transaction entered into was also unconscionable, then the burden of proof that he did not use his dominant position to obtain an unfair advantage over the other is shifted on him. When there is evidence of overpowering influence and the transaction is immoderate and irrational, proof of undue influence is complete. It is not necessary that such overpowering influence should be by threat or by committing any act forbidden by law or by unlawful detention, etc. If a person has some influence over other and by means of that influence reduces the will of the other to his subjection, whatever may be the nature of the influence spiritual, moral, social or any other influence, then it is such coercion as is sufficient to constitute undue influence. Undue influence usually arises in contracts made between rela tions or persons in fiduciary position. But as between strangers between whom there exists no fiduciary relation certain forms of coercion, oppression or compulsion may amount to influence invalidating a contract. The terms of the law embodied in section 16 are explicit and admit of no ambiguity. Undue influence is not a matter always, capable of direct proof and must depend in its very nature, on the conclusions to be drawn from the entire circumstances in which the transaction had its origin. The law laid down in the case of Bholanath referred to above does not carry us further than what is laid down in section 16 (3) of the Contract Act. Let us now consider if on the strength of law laid down in section 16 (3) the trial Court was justified in throwing the onus on the plaintiff. At the date of the gift Bepin was aged about 85 years. Extreme old age itself is a disease but besides this legacy of nature Bepin's body became an abode of various other diseases including blood pressure. This is not only admitted by Sarala herself but is also proved by some of the witnesses on the side of the plaintiff. Blood pressure at certain stage, before the deed of gift turned out to be an alarming menace to the life of Bepin. On this point Bidhu Mukhi made an emphatic statement and it was to the effect that her father, due to blood pressure, sometimes fainted and blood oozed out from his nose and mouth. Sarala could not deny it, though en deavoured. Then again the letter, Exh B, addressed by Krishna Gopal to Bepin, his grandfather on the 25th July 1941 affords an ample scope to form a fairly accurate estimate of the condition of Bepin on the date of the deed in question. The letter if read along with the evidence of Krishna would come to this that he left Dacca on the 23rd July, and on the day preceding, i.e., on the day following the day of execution of the deed he saw the old man suffering from fever besides his chronic diseases. From the facts admitted and proved there cannot be any manner of doubt that at the date of the transaction Bepin's mind was enfeebled by old age and illness and Sarala who was exerting hard for a long time to monopolise the property could not be expected to be idle then and in fact she was not. The plaintiff's allegation is that when the old man was staggering under the malignant influence of various diseases, the wife, then in advantageous position came up in her true colour and repeated her demand with unabated fury. The proof in support of this allegation is furnished by Roy Bahadur Pyarilal as well as by the letters. Exhs. C and D. Let us now consider whether the transaction on the face of it appears to be unconscionable. On this point the Will dated 27th August 1924, will furnish valuable materials for a correct solution of the question. By this Will, as already pointed out, Bepin gave away a valuable house property to Sarala absolutely and further provided that after his death she would enjoy all his properties left by him for life. This is not all. A few years after the Will Bepin gifted away Government papers worth Rs.10,000. The properties given were more than sufficient to maintain the lady but she pressed for the entire fortune of her husband. An examination of the deed of the gift discloses that excepting indispensable wearing apparels, namely, walking stick and umbrella, everything was gifted away by the deed. What, therefore, follows is that the disposition had the effect of rendering Bepin a landless mendicant and Sarala a lady of fortune. Tested in the light of above circumstances, we cannot but hold that the learned Subordinate Judge ought to have found that the transaction on the face of it was unconscionable and that the burden of proving that it was not induced by undue influence lay upon the defendant. Now let us proceed to decide how far the defendant respondent Sarala succeeded in discharging this onus.
The deed was written by D. W. Hari Das and attested by as many as eight witnesses, namely, (1) Radha Gobinda Saba, (2) Dinabandhu Saba, (3) Roy Bahadur Satyendra Kumar Das, (4) Mahendra Kumar Das, (5) Subodh Chandra Das, (6) Lakshi Kumar Chakravorty, (7) Ganga Charan Das and (8) Srish Chandra Das, of whom Radha Gobinda and Dinabandhu are dead. Of the remaining witnesses Mahendra Kumar Das, Lakshi Kumar Chakravorty and Ganga Charan Das was examined besides the scribe. The rest have not been examined, though available. Radha Gobinda was debtor of Bepin at the date of the transaction. When Bepiri's days were being numbered it is not expected that Radha Gobinda would be very anxious to pledge his allegiance to his prospec tive creditor. Dinabandhu was brother of defendant No. 1 Sarala and the brain behind this drama. He was vitally interested in the deed as the property in case the deed stands would ultimately devolve on him. Roy Bahadur Satyendra Kumar Das, of course, has no direct connection with the defendant but he and his prominent officer Shyam Ballav happen to be creditors of Bepin and Shyam Ballav, brother of Pran Ballav again looks after the affairs of Sarala. As the evidence shows Roy Bahadur also cannot be brought within the category of independent witnesses: Babu Mahendra Kumar Das as will appear from Sarala's evidence, was a retained Pleader of Bepin for a long time. This gentleman was not briefed but still as self constituted champion of Sarala's cause, volunteered his service and displayed an ugly professional conduct at the time of examination of Sarala regarding the situation of a photograph of Santosh, graduate son of the plaintiff s eldest son Krishna Gopal. Plaintiff at the trial came up with the story that on hearing the news of Santosh's graduation Bepin was elated with ecstasy and on the occasion of convocation Santosh's photograph with con vocation robe was hung up in one of the rooms of his house below the photograph of one Bhola Giri. To establish this fact when the plaintiff's Pleader put certain questions to Sarala, Mahendra Babu sprang up and intervened in a manner repulsive to good taste and irreconcilable to professional conduct. Next comes Subodh Chandra Das. This witness happens to be nephew and manager of Roy Bahadur Satyendra Kumar Das. Next witness is Lakshi Kumar Chakravorty but he happens to be family priest of Bepin. Our remark about Radha Gobinda Saba applies to this witness too. Lakshi Kumar knew that after Bepin's death Sarala would hold the key position. It will be, therefore, unsafe to rely din a witness who would be anxious to oblige Sarala to retain his hold over the family for mercenary gain.
Next witness is Ganga Charan Das, but he happens to be uncle‑in‑law of Sarala. Yet there is one more witness and he is Srish Chandra Das but he happens to be Bhasur (husband': elder brother) of Radha Rani, mother‑in‑law of Sarala's nephew Radhashyam. It further transpires in evidence that Srish and his sister's husband Ganga Charan Das. D. W. 6, has got joint business. What, therefore, follows is that all the attesting witnesses are more or less interested in the defence. There were independent neighbours but no attempt was made to bring them into witness box to discharge the onus. The selection was made from among the persons who could not be expected to disoblige Sarala. Besides the scribe and the three attesting witnesses, Mahendra Kumar Das, Lakshi Kumar Das and Ganga Charan Das, two other witnesses, namely, Sarala defendant No. 1 and her nephew Radhashyam have been examined to prove execution but their statements bristle with shabby discrepancies on material points. Mahendra Babu, Radhashyam and Hari Das deposed to the effect that Bidhu Mukhi was present at the execution and lodged a mild protest saying that she was not given anything but Sarala in her anxiety to strengthen her defence went a step further and stated that as soon as the execution was over, Bindhu Mukhi cried aloud and said that nothing was given to her. Lakshi Kumar again came up with a different tale. What he said is that no woman was present in the room at the time of execution of the deed but that he did not remember if there was any woman outside the room at the time. Lakshi Kumar being family priest is expected to know each and every member of Bepin's family and if Bidhu Mukhi was actually present and cried aloud, he would not have omitted to make mention of her name. Ganga Charan's evidence is a mere denial. What he said is this: Bidhu Mukhi did not tell her father anything at the time of execution of the deed of gift. Two other witnesses examined are Brahma Nanda Das and Pran Ballav Das but they did not say anything about execution. The discrepancies pointed out are not without significance. They furnish materials for the inference that these attesting witnesses were not simultaneously present and their signatures were obtained at different times to maintain secrecy. This view will find support in the conduct of Sarala when she was being examined. The material portion of her deposition runs as follows:
Q.---"Did he (Begin) execute any document in respect of the properties before his death
A.--'I do not know that."
Q.‑ ‑"What did he do regarding his properties and house etc. "
A.‑ ‑"I can't say."
Q.‑ ‑"Did he give the property to anybody else "
A: ‑'"He has executed a deed of gift in my favour-so T hear."
Q.‑ ‑"Where did he execute the deed of gift "
A.‑"It was executed in the very house, so I have heard."
The witnesses on the side of the defence in clear and unequivocal language admitted that Sarala knew everything about the deed of gift. Yet she would feel nervous to demon strate to the world that she was in touch with the transaction.
If there was no sanction of the trust behind the plaintiff s allegation. Sarala would not have felt uncomfortable when questions regarding her knowledge about the execution of the deed were put to her. It is true that some of the attesting witnesses, have said that in reply to Ganga Charan's query Bepin said that he was executing the document of his free will but those witnesses being highly interested in Sarala, it will be extremely risky to act upon their statements, specially when they are discrepant on material points. Thereafter Ganga Charan who is said to have made the enquiry, happens to be Begin s cousin and has also close intimacy with him. It further transpires that whenever Bepin felt pecuniary difficulty, he used to look upon Ganga Charan for help. This Ganga Charan, as already pointed out, has again got joint business with the Bhasur of Radha Rani, mother‑in‑law of Radhashyam, nephew of Sarala. If Begin conceived the idea of giving away to his wife of his free will it is very likely that he should consult Ganga Charan, his nearest paternal relation and close neighbour before the execution of the disputed deed. At this sitting of execution and attestation Ganga Charan, therefore, could not be expected to make any such enquiry. Such query could have sounded natural if it came from the persons who did not usually come in contact with Bepin, namely, Roy Bahadur Satyendra Kumar Das and Subodh Kumar Das, but none of the attesting witnesses on the side of the defence would say that Roy Bahadur or Subodh made any enquiry whatsoever from Bepin as to whether he was gifting away his properties out of free will. Roy Bahadur Satyendra Das alias Satu Babu is still alive but no explanation has been offered why this gentleman whose evidence might be of some use is held back. To be precise, the defendant respondent Sarala has hopelessly failed to prove that Bepin was not induced to execute deed by undue in fluence. Let us now turn to the evidence adduced by the plaintiff appellant to prove affirmatively that the document was obtained by undue influence and coercion. The oral evidence furnished consists of the evidence of plaintiff Bidhu Mukhi, Gopeswar Saha, P. W. 3, and Nagendra Ch. Das, P. W. 4, and Roy Bahadur Pyarilal Das, P. W. 6, and docu mentary evidence consists of two letters, Exhibits 1 (c) and 1 (d) and two slips Exhibits 5 and 5 (a).
Bidhu Mukhi's evidence indicate that Sarala was not satisfied with the provision made by the will and from 3 years before Bepin's death she on being encouraged by her brother began to press her husband for a deed of gift in respect of all, his properties and the demand gradually became acute in the evening of his life. P. W. 4, Nagendra also deposed to the same effect, his evidence being that in Baisakh or Jatstha, 1347 B. S., Bepin complained that he was being ill‑treated by his wife and his brother Dinabandhu for his not being agree able to make a deed of gift in respect of his properties. Such complaint by Bepin to his grandson‑in‑law is not at all unlikely when evidence on record discloses that he was very much attach ed to his daughter and daughter's children. P. W. 3 Gopeswar Saba, a close neighbour of Bepin has given an episode which, if closely scrutinized, will give us a picture of the unhappy home of Bepin on account of Sarala's persistent demand for a deed of gift. The episode as given by Gopeswar is to the effect that at about 3 years before 1944 Sarala left her husband's protection with tears in eyes, and shifted to Mr. Justice Lal Mohan Das's house on account of Bepin's refusal to accede to the demand for gift. Roy Bahadur Pyarilal also spoke about Sarala's pressure on Bepin for a gift. Precisely speaking, his evidence, if carefully read, will not only take us to the inner most chamber of Bepin's house but also afford us scope to draw correct inference on the point under review. What he says is this:
"I began practice as a lawyer here from 1889 and had active practice till 1921 when I retired. I was the Chairman of the Dacca Municipality for some years. I received the Honours of Roy Bahadur and M. B. E. from the Government. I knew Bepin Behary Roy. He was older than me by 10 or 12 years. He was connected with me. The plaintiff's husband was son of my Pisatobhai. Bepin Babu lived at Dacca in the last part of his life. I met him almost daily during his stay at Dacca. He consulted me about his worldly affairs always and took my advice about the same. Bepin Babu told me that his wife used to ask him always to transfer his properties to her by a document. His wife also complained to me that inspite of her pressure, Bepin Babu was not giving her any document for his properties and requested me to ask Bepin Babu for it. Bepin Babu was very unwilling to make any disposition of his properties in favour of his wife. He used to say in this connection "Khodar Opor Khodagiri Korbona (The Will of God will prevail) and I would not do anything". I asked Bepin Babu to adopt a son and he gave the same reply "Khodar Opor Khodagiri Korbona". Bepin Babu endorsed some Government security paper in favour of his wife. He died in Agrahayan, 1348 B. S., 4 or 5 months before his death I had been to his house once. I used to visit Bepin Babu always but his wife did not desire it. She used to sit by my side lest I should give him any advice. For this reason discontinued my visit to Bepin Babu. My idea was that Bepin Babu was not willing to gift his properties to his wife Bepin Babu had blood pressure (opinion not admissible in evidence).
The husband of the plaintiff was an Officer of one joint Firm named Budhu Nath Sukhlal Poddar. My paternal house and that of the plaintiff's husband's lie at the same lane. My personal house is 5 or 6 minutes' walk from the house of the plaintiff and her son Kisto Gopal Das. Kisto Gopal Das is obedient to me . . . . . . In the month of Kartick every year Bhagabatgita used to be recited in my house. Bepin Babu used to attend it occasionally. He gave away his daughters and grand‑daughters and grand sons in marriage according to the Hindu rites. I was on speaking terms with the defendant No. 1 always. I had not been to the house of Bepin Babu for 4 months before his death. I did not see who nursed Bepin Babu during his illness. Defendant No. 1 never asked me not to visit Bepin Babu. But Bepin Babu told me that his wife became annoyed for my visit to him. This was about 5 months before his death. I do not remember if any other persons were there. Bepin Babu gave me hints of his wife's displeasure on many occa sions and told me once expressly. Even after the hints I used to visit Bepin Babu always. I do not know if the defendant No. 1 had respect for me. But she did not readily open the door . . . . . . on my call and Bepin Babu had to inter vene. On many occasions Bepin Babu's wife had been also absent from us during my visit to Bepin Babu. He generally lived with his family in Calcutta towards the end of his service. I used to see him on my visit in Calcutta but I did not live with him there. After the death of Bepin Babu I have seen and met his wife. I had also consultation with Bepin Babu about my worldly affairs but I did not tell him even about any talk with my wife about my worldly affairs. I heard from Bepin Babu that he left a 'Will' in sealed cover with the Sub‑Registrar for safe custody. Kunja Behari is my younger brother. I do not know if he attested the 'Will'. I know the handwriting and signature of my brother Kunja Behari Das in English only and not in Bengali. Babu Jogesh Chandra Guha, Pleader was Pleader of our estate for sometime. I do not know his Bengali writing. Bepin Babu said to me that under pressure of his wife he had to execute a 'Will' and that he abandoned it. He said to me this before 1930 or 1931. I did not enquire where the Will was then. He said that he abandoned it by having it withdrawn but I did not enquire how it was done. I did not enquire of Bepin Babu about the particulars of the "Will". After his death I heard that he executed a deed of authority to adopt a son and also about the deed of gift. I did not inform the plaintiff and her son Kisto Gopal Das, that Bepin Babu had told me that he was being pressed by his wife for a deed of gift. I did not advise Bepin Babu not to give any deed of gift by all means. Kisto Gopal Das went to me with a summon to depose on Saturday last. His son also accompanied him. But I had no talk with him about this suit. I had also light refreshment occasionally in the house of Bepin Babu. His wife did not appear then."
It may be questioned whether a man of Bepin's culture and social status should disclose the delicate incidents of his private life to Roy Bahadur but an answer to his question will not be far to seek. Evidence on the record discloses that the plaintiff's husband was Roy Bahadur's cousin and this special relationship was responsible for the discourteous treat ment, Roy Bahadur had the misfortune to receive from Sarala. The lady suspected that Roy Bahadur on account of her relationship with Bidhu Mukhi might be an impediment to her success in the attempt to persuade her husband to accede to her demand but Roy Bahadur is not a commoner. The Chairman of Municipality is considered to be the first Citizen of the town and Bahadur Roy had not only that distinc tion but was also a distinguished lawyer Zamindar too and we are unable to ignore the evidence of a gentleman of his social status. Even the trial judge did not make any comment on the evidence of Roy Bahadur nor did he give any reason for discarding his evidence. Then again, the theory of undue influence and coercion is not a new theory propounded at the time of drafting the plaint but its reference will be available in the letters, Exhibits I (c) and 1 (b) addressed to plaintiff's eldest son Kristo Gopal by P. W. Jogesh a graduate neighbour whose service Bepin during his old age very often requisitioned to write letters for him. Jogesh was a common relation of the parties and the statements at the trial do not give us any impression that he got intuitive bias against Sarala. On the other hand his evidence, if closely scrutinised, will demonstrate that he tried to be fair to all concerned. He has proved the letters, Exhibits 1 (c) and 1 (d). One of the letters was written on the 14th July and the other on the 15th July, 1941, that is, about a week before the execution of the deed of gift. The first letter, namely, the letter Exhibit 1 (c) runs to the following effect.
"Dacca P. O., 14‑7‑1941, 30th Ashar, 1348 B. S.
My dear Mama,
I do not hear from you for a long time. I hope, you are all right. It may be said that Jethaima is putting pressure upon so to say oppressing Jethamahasay to execute a deed of gift in favour of Jethaima in respect of all his properties. I think it necessary to give this information to you and so I am sending this letter to you. Please know if that deed of gift has not been executed as yet, it will be done soon. A great quarrel has ensued in the house at Kaparianagar. I am not in this nor do I intend to do so: Please let me know how you are all doing. We are all right. Finis. (15th July, Calcutta).
Yours affectionately,
JOGESH CHANDRA DAS.
(Dacca, 4th July.)
Post Card‑
Address‑ "
Babu Krishna Gopal Das,
Bengal.
Bengal C. I. D.'s Office,
Writers Buildings, Calcutta."
The Second letter runs as follows:
"Dacca P. O., 25‑7‑1941, 31st Ashar, 1348 B. S.
My dear Mama,
Yesterday I sent you a letter at the address of your office. But me thinks, it has not reached you owing to the mistaken address. For the last few days Jethaima has been putting such a high pressure upon Jethamahasay that he in spite of his unwillingness, has been agreeable to execute a deed of gift in respect of all his properties. The deed of gift has not yet been executed. A good deal of quarrel is going on at the house of Kaparianagar. I do not go there. You may do what you think Bid best in this connection . . . . . . . . . . . . . . (Beadon Street, Mu 16th July, Calcutta.)
Yours affectionately,
Jogesh Chandra Das.
Post Card‑
Address
Babu Krishna Gopal Das,
12, Vivekananda Road.
P. O. Beadon Street, Calcutta."
Jogesh being a neighbour relation of Bepin was expected to visit Bepin's house frequently and in fact he did. His knowledge about the daily incidents at Bepin s house during his illness cannot therefore be lightly thrown away. Both the letters were written from Dacca to a man there living at Calcutta. It, therefore, could not be suggested that they were written under a preconceived plan and in fact no such suggestion was put either to Krishna Gopal or to Jogesh. Nor is it suggested that it was Bidhu Mukhi who got the letters written by Jogesh. If the preamble of the gift that Bepin was giving away all his properties to his wife on being charmed with the service rendered by Sarala during his illness, a man of Jogesh's education would have never run the risk of manufacturing a theory of coercion a week before the deed of gift and carrying the alarming news to Krishna Gopal. For, a graduate was expected to have this much intelligence that a person deeply enamoured of his wife would not tolerate him for disseminating an obnoxious scandal against his wife. Mahendra Babu drafted the deed of gift and this drafting according to defence was started a week before the date of execution of the deed. The deed had the effect of nullifying the Will, Exh. A, and the document therefore was expected to create a considerable flutter in a limited circle of Bepin's family. Jogesh's letters simply gave expression of this commotion. The dates of the two letters again synchronise approximately with the alleged dates of drafting of the deed of gift. The letters speak of tussle between a dying man and his avaricious wife backed by her scheming brother. The learned Subordinate judge misinterpreted these letters and drew a hectic inference glaringly paradoxical to the spirit of the letters‑the inference drawn being that the letters indicated clear intention on the part of Bepin to execute a deed of gift in favour of his wife Sarala. The judgment of the trial Court is one sided. It did not take into consider ation any of the facts which favour the theory of undue influence and coercion.
Next come the slips, Exhs. 5 and 5 (a) dated 8th July 1941, and 10th July 1941, respectively, purported to have been written by Bepin Babu. The slip, Exh. 5 was to the effect "All‑ the properties which owned and possessed were being taken‑ away by my wife by a deed of gift. The deed was
being taken against my will after holding out threats of violence."
Exh. 5 (a) was almost to the same effect. It ran thus
"This deed of gift had been executed against my will. The person who would ever disclose all these things is my beneficiary. I am now confined in jail.
BEPIN ROY,
26th Ashar, 1,148 B.S."
These documents not only shake the very foundation of the defence theory but considerably strengthen the plaintiff's theory that the deed of gift was obtained by undue influence and coercion. The defendant seeks to maintain that these slips are forged documents created for the purpose of this suit. It is true that none of the witnesses on the side of the plaintiff was present at the time of writing of these small slips but plaintiff‑appellant in this connection counts upon the evidence of these 3 local witnesses, Krishna Gopal, P. W, 2, Nagendra Chandra Das, P. W. 4, and Jogesh Chandra Das, P. W. 5, also upon the evidence of the handwriting expert Nirmalendu Das Gupta. Krishna Gopal, Nagendra and Jogesh proved that both the slips were in the handwriting of Bepin. These witnesses being relations of Bepin and frequently in touch with him are expected to know Bepin's handwriting. Their evidence, therefore, cannot be lightly thrown away. Along with this let us consider the opinion of the handwriting expert. The slips, Exhs. 5 and 5 (a) as appears from the materials on the record were sent to Babu Nirmalendu Das Gupta, handwriting expert attached to the C.I.D Bengal, for comparing the writing and signature of Bepin Behary Roy occurring therein with his admitted signatures in the Will, Exh. A already referred to above, Post Card, Exh. (1), dated 22nd February 1935, the letter, Exh. 1 (a), dated 6th July 1937, and the letter Exh. 1 (b), dated 26th January 193 , and for opinion on the point whether the writing and signature in Exhs. 5 and 5 (a) tally with the admitted signature and writing of Bepin. The handwriting expert after examination of these documents by adopting the prescribed procedure came to the finding that the slips Exhs. 5 and 5 (a) were in the handwriting of the same person who wrote the letters Exhs. 1 (a) and 1 (b) and that the signature in the slips also were in the handwriting of the same person who signed the Will, Exh. A. The learned Advocate for the respondent contends that the plaintiff's son Krishna Gopal (P. W. 2) being an employee of the same Department to which the handwriting expert belongs, it will be extremely unsafe to act upon his opinion. It is true that both Krishna Gopal and Nirmalendu work in the same office, the former as an accountant and the latter as handwriting expert but it is nowhere available that the plaintiff pressed for appointment of any particular expert. On the other hand it appears that her agent by a petition dated 11th November 1942, suggested names of 4 experts, namely, Babu Baikuniha Bhattacharyya. Nirmalendu Das Gupta, Amulya Ranjan Shamajdar and Muhammad Abu Sayed. There was an objection from the side of the defendant, but this was overruled by the trying judge. The petitions filed by the plaintiff in this connection and the Court's order thereon, if closely examined, will show that the plaintiff or her agent did not suggest any name till she was asked by the Court. Krishna Gopal was asked about the appointment of expert, and his reply was that he had no talk with Nirmalendu about the examination of the document nor was he aware that the slips were sent to Nirmalendu for examination. Shortly after the appointment of Nirmalendu the presiding Officer was transferred and he was succeeded by the trial judge, Mr. V. Hossain, but the latter did not approve Nirmalendu's appointment and made the following adverse comment. "This handwriting expert and plaintiff's son Krishna Gopal Das serve in the same C.1 D. Office, Calcutta. It appears from the order‑sheet that this expert was also named for an examination of the questioned documents, that is, Exhs. 5 and 5 (a) on behalf of the plaintiff. He appears to be an inexperienced expert and being in the same office and named by the plaintiff's people may have some bias for the plaintiff unconsciously. Photographic enlargements of the disputed slips were taken and filed along with the plaint. This signifies some pre‑arranged plan." The comments are not only unconvincing but unwarranted too. It is astounding how the trial judge could draw an adverse inference against the plaintiff for an act over which she had no control. Moreover, it was not even within his competence to make any adverse comment on the order appointing Nirmalendu as expert where it was made by his predecessor in office overruling the defendant's objection in the matter judicially. The plaintiff may be an unsophisticated lady having no knowledge of the winding courses of litigations and their ultimate results but the same thing cannot be said of her on Krishna Gopal a literate man of mature experience. It can hardly be believed that the son should encourage his mother to forge a document when there was no guarantee that the Court would select a handwriting expert according to their desire so that they might obtain a favourable report. The trial judge's comment regarding photographic enlarge ments of the disputed slips is equally unconvincing. The photographs of the slips were taken before institution of suit and filed along with the plaint. This apparently looking over carefulness on the part of the plaintiff creates suspicion in the mind of the trial judge who without making any attempt to go deep into the matter at once jumped to the conclusion that the plaintiff's conduct signified that she started the litigation with pre‑conceived plan. It is true that reason for taking photographic enlargements are not available anywhere in the record but to us the reason seems to be obvious. The slips were in the shivering hand of a dying man and such writings could not be expected to have the same look as the writings of a normal hand. As already pointed out neither the plaintiff nor her son Krishna Gopal was present at the time of the writing of the slips. It is, therefore, not at all unnatural that to satisfy themselves as to the author of the slips, they should take photographic enlargements with a view to get them examined by an expert in case their genuineness was called into question by the other side. According to the expert there are eleven general characteristics of the writings, viz., movements, pressure, shading, penholder, pen position style, pen's scope, alignments, spacing, sizing, line quality and slant but he dealt with some of the important general characteristics. Ire did not discuss about the alignment, sizing and spacing. This was taken exception to by the learned trial judge who observed that the expert having failed to compare the alignment of the writings and line quality of the questioned document, his report should not be considered to be perfect. It is true that all the characteristics were not taken into consideration in giving the opinion but the defendant had not the courage to apply for appointment of another expert though we expressed our willingness to grant such a prayer even at this stage. The learned Advocate for the appellant did not count purely upon the expert's opinion but invited our attention to the oral testimonies of 3 witnesses, namely, Krishto Gopal, Jogesh and Nagendra who had occasion to see Bepin's writing. It is not known to anybody how and when the slip was written but it is admitted that at the date of the slip Bepin was too weak to move out and even unable to stand without support. The question as to how it was possible for Bepin to circulate the slips, may agitate one's mind but an answer to this pertinent question has been furnished by P. W. 4 Jogesh whose evidence runs as follows: "Nitai Das made over the slip Exh. 5 (a) to me one Sunday soon after the 26th Ashar, 1348 B.S., may be 2 or 3 days after the elate. It was made over to me in my house at 8 a.m. No witness was present there at the time, except a barber who did not notice it. On enquiry Nitai Das told me that Bepin, Babu had made over one slip to Nitai himself, one to myself, one to Ganga Charan, one to Srish Das and one to another man whose name I have forgotten . . . . . On the very day I got the slip from Nitai I met Ganga Charan Das and learnt from him and then I wrote a letter to Krishto Gopal Das at Calcutta. I did not see Bepin Babu after I had got the slip from Nitai Das. Thereafter I met him on many occasions but I had no talk with Bepin Babu about the slip as there 'were many other people . . . . I made over the slip to Krishto Gopal in their house here during the X‑mas holidays in 1941."
This is supported by Krishto Gopal. Ganga Charan who was examined on the side of the defence by the defendant's Pleader had not the courage to put a single question to him about the slips though he came to the witness box on the day following the date Jogesh was examined. This lack of courage on the part of defence renders the defence attack on the slips completely ineffective. Nitai was a close neighbour of and regular visitor to Bepin. Distribution of slip through him, therefore, is not at all unnatural or improbable. Nitai was not examined and this has been seriously commented on both by the trial Court as well as by the learned Advocate for the respondent. A careful scrutiny of the record discloses that Nitai was cited as witness by the plaintiff but eventually he was not examined. The lower Court record does not furnish any material why an important witness was not put into the witness box, but it. will not be unsafe to infer that the plaintiff abandoned the idea of examining Nitai on getting scent that he joined the hostile camp. This inference will find support in the conduct displayed by Nitai during the pendency of the appeal. Nitai was in masquerade during the trial but soon after the filing of the appeal put off the mask and openly espoused the cause of the respondent by swearing an affidavit on her behalf in this appeal.
In the plaint there is reference of the slips but the name of Nitai was not mentioned there. What stated therein is that through a particular friend of his Bepin sent several slips to his relations. This non‑mention of Nitai'.s name in the plaint was severely commented by the trial judge and the criticism runs thus : "The fact that the name of that parti cular friend was not disclosed in the plaint is very significant. Probably who will pose as the particular friend of Bepin Babu as the carrier of the slips could not be fixed up at the time of the institution of the suit and the elastic expression was used to accommodate any person available to play the part. At the trial that particular friend was said to be one Nitai Das but he was not, produced and examined to prove on oath that he actually got the slips, Exhs. 5 and 5 (a) from Bepin Babu." While making this observation, the learned judge betrayed sad ignorance about the elementary knowledge of the rule of pleadings as laid down in Order VI, rule 2 of the Code of Civil Procedure. It is an elementary rule in pleading, that, when a state of facts is relied on, it is enough to allege it simply, without setting out the subordinate facts, which are the means of producing it, or the evidence sustaining the allegation. No doubt, evidence also consists of facts, but there is a convenient nomenclature to distinguish the two. The material facts on which, the party pleading relies for his claim or defence are called facta probanda. The evidence or the facts by means of which they are to be proved are called facta probantia. : Every pleading should contain only facta probanda, and not facta probantia. The distinction is taken in the very rule itself, namely, in rule 2, between the facts on which the: party relies and the evidence to prove facts. Thus, a defendant is not entitled to the names of the plaintiff's witnesses, for that is to require particulars of the evidence by which the plaintiff's case is to be proved. This precautionary measure has obtained legislative sanction apparently to guard against the tampering of evidence. In the present case too the plaintiff apprehended the same danger but could not prevent tampering, the defendant having succeeded in winning over Nitai to her side by clandestine means. The learned Subordinate Judge, therefore, ought not to have formed adverse opinion against the plaintiff for not examining Nitai.
In the letters, Exhs. 1 (c) and 1 (d) Jogesh did not say a word about the slips received by him from Nitai. The learned Subordinate judge made adverse comment on this omission too on the part of Jogesh and attempted to say that at the date of the letters, Exhs. 1 (c) and 1 (d), slips Exhs. 5 and 5 (a) had no existence. But Jogesh offered explanation on this score, his explanation being that the substance of the slips having been mentioned in the letters, he thought it unnecessary to make specific reference thereof. The explanation offered being very sensible, we are not prepared to throw away the slips for the omission complained of. The trial judge further observed that if Bepin actually made over the slips to Nitai with instruction to circulate them amongst public, there would have been some sort of attempt to rescue the old man from the clutches of his wife. It is true that neither Jogesh nor Krishna nor any other relations made any attempt to rescue the old man from the custody of Sarala but Bepin by his slips did not desire any such immediate a help, for he knew that to frustrate Sarala's attempt at that stage would be virtually throwing him into a veritable furnace of his wife's anger. What he desired was that these slips after his death might help his prospective heirs to set aside the deed of gift. Then again it appears that on receipt of Jogesh's letters, Exhs. 1 (c) and 1 (d), dated 14th July and 15th July 1941, Krishna Gopal came to Dacca on the 20th July, that is, on the date preceding the date of execution of the deed of gift. Krishna Gopal deposes to the effect that on his arrival he had talk with his mother Bidhu Mukhi at his paternal house, ten minutes' walk from Bepin's house and that from his paternal house he went to Bepin's house with fruits and saw him surrounded by Sarala, Dinabandhu, Sashi Mukhi, Radha Rani and Radhashyam and that after making enquiry about Bepin's health he came away and that during his stay here nobody told him anything about the deed of gift and on the third day of his stay here he again went to see Bepin in the afternoon and saw him surrounded by the same ; set of persons referred to above and Bepin was then running temperature. The actual date of Krishna's leaving Dacca is not given by him but this can be ascertained from the letter. Exhibit B, dated 25th July 1941, addressed by him to Bepin on his return to Calcutta. In this letter Krishna said that he reached Dacca on the day preceding the date of 25th July. If in a letter written from Calcutta on the 25th July the writer says that he reached there on the day preceding it can safely be said that the writer left Dacca on the 23rd a July. What, therefore, follows is that Krishna Gopal was in Dacca on the date of the deed of gift, but none of the defence witnesses who claimed to have been present at the time of the deed of gift would venture to say that Krishna Gopai was present at the time of the deed of gift, nor could they stake ail oath saying that he was sent for but he refused to come. Some of the witnesses of course attempted to say that plaintiff Bidhu Mukhi was living at Bepin's house at the date of the gift and after the execution was over she went out of Bepin's room with tears in eyes and lump in throat but this episode does not appeal to us in the least. The deed according to the plaintiff was executed at about 10 a.m. and it can hardly be believed that the mother should be staying away from home when her son was her guest. The learned judge did not accept the plaintiff's theory that Krishna Gopal had no know ledge of the deed of gift and the slips, Exhibits 5 and 5 (a) during her stay here. It is true that one would expect that during his stay here Krishna should feel tempted to meet Jogesh but there is no evidence that Jogesh had knowledge of the deed of gift. He being a graduate, a relation of Bepin, is expected that he should be invited to attest the deed but his name does not find place among the category of attesting witnesses. He knew the real state of things and would be unwilling to be party to an unholy transaction. It is, there fore, very natural on the part of Sarala and her wily brother Dinabandhu not to invite trouble by seeking Jogesh's help in the matter. Krishna Gopal says that the slips, Exhibits 5 and 5 (a) were made over to him by Nitai and Jogesh, respec tively, during the Chritsmas holidays, that is, in December 1941. The learned Subordinate judge observed that he could not believe that though Krishna stayed here for about 3 days in July 1941, still he had no talk with Jogesh about the slips. The observation apparently has the look of soundness but if one dives deep in the materials on the record he will find little force in it. During Krishna's stay here in July 1941, he was not aware of the deed of gift. He therefore could not be expected to display any anxiety for the slips especially when the purports of the slips had already been conveyed by the letters, Exhibits 1 (c) and 1. (d). The importance of the slips was felt after Bepin's death which occurred on the 6th December 1941, that is, shortly before the Christmas holidays when the plaintiff came to know of the deed. In this it was alleged that plaintiff and her son Krishna Gopal came to know of the deed of gift after the death of Bepin in December 1941, but at the trial Krishna Gopal made a different statement, his statement being that he first came to know of the deed of gift two or three months after his return to Calcutta. These discrepancies afforded scope for adverse comments and the learned Advocate for the defendant respondent did not miss this opportunity, his comment being that Krishna Gopal's evidence belies the plaintiff's theory that she came to know of the deed of gift for the first time after Bepin's death in December 1941. Defendant respondent's case is that the plaintiff and her son Krishna first came to know of the deed of gift in July 1941, while the plaintiff appellant's case is this‑they first came to know of it in December 1941, i.e. about 6 months after the deed of gift. Evidently, therefore, Krishna's state ment at the trial does not make mention of any of the two persons. The statement relied on by the learned Advocate for the respondent seems to have been indifferently made without counting what would be the number of months from July to December. Yet there is another aspect. Krishna's statement if closely scanned will show that it consists of two parts, each part carrying different sense. The first part speaks of rumour and the second part about personal know ledge of the deed of gift. In this connection let us turn to the letters, Exhs. B and B (1). Exh. B, as already pointed out was written by Krishna to Bepin on the 25th July 1941, and it ran thus:
"My dear grand‑father,
I reached here safely yesterday. There was no trouble on my way. My sons and daughters who were ailing have come round, and all are well. I saw you suffering from fever Tuesday last. Please let me know how you are doing now. I am very anxious for you . . . . . . Please accept by obeisance and convey the same to Didimani and Masima.
Yours affectionately,
KRISHNA GOPAL DAS."
This was followed by the letter, Exh. B (1), dated 11th November 1941, which runs as follows
" Calcutta, 11‑11‑1941.
My dear grand‑father,
I received your letter on Saturday last and I have come to know the present state of your health. My mother reached here on Saturday last. I have heard that it was not possible for her to see you. By the grace of God, the "paka dekha" (ceremony of the final selection of the bride) of the marriage of my eldest son Sreeman Santosh was done on Sunday last the day before yesterday. But‑your absence was even felt by us. I have given 13 kinds of dues and one necklace with pendant. We went there with Suresh Babu, Barrister K. K. Das and some other persons. I did not come to any final contract (Agreement) regarding dowry. So far as I understand they will give dowry to the extent of Rs. 4,000 to Rs. 5,000 and there is house standing in the name of the girl at Hatkhola. She will get the rent thereof during her lifetime. This is the only daughter of Pramatha Babu and he has no other children. Nakul's marriage has not yet been settled. In the meantime Rai Satish Chandra Choudhury Bahadur came to our residence with a negotiation for the marriage of Nakul with the daughter of his nephew in relation, I have not settled anything as yet. Most probably 14th Agrahayan will be the date fixed for marriage. Please convey blessings to us so that we may celebrate these two marriages by this time. We want your blessings. We are all well. Please let us know how you are doing. Please accept Namaskar (obeisance) from us all and convey the same to Didimani and Masima. I shall go to Dacca once before the marriage and shall inform you before.
Yours affectionately,
KRISHNA GOPAL DAS."
These two letters abundantly prove that the plaintiff or her son Krishna Gopal had no knowledge of the deed of gift before the death of Bepin. The learned Advocate for the respondent wants us to believe that Krishna Gopal saw his mother eating her breast and wailing on the occasion of the deed of gift, but still on his return to Calcutta he went on writing affectionate letters with enquiries indicating his genuine anxiety about the health of his grandfather. To accept this view will be carrying this imagination too far. In this connection it is further suggested on behalf of the respondent that though the plaintiff had knowledge of the deed of gift, still she waited till the death of her father so that the statement of Bepin might not be available at the trial. Assuming for argument's sake that what the learned Advocate suggests is true, that would not affect the plaintiff's case in the least, reason being this that Bepin at the date of the deed of gift was purely at the mercy of his wife and the plaintiff and her party fully realised that any attempt on their part during the lifetime of Bepin would end in a miserable failure, for, in spite of his earnest desire Bepin would not be able to give out the true state of things.
Bepin was a loving husband and affectionate father but this love for the wife and affection for the children and grand‑children could not swerve him from the path of justice. He was not for any particular dependant but was for all. These traits are conspicuously exhibited in the Will, Exhibit A. By this Will Sarala got absolute right in one of the immovable properties Bepin had at the time and was permitted to enjoy the remaining properties as limited owner she was also given the option of taking a son in adoption but he did not appear to be serious on the point. Had he been so, he would not have left the matter to the discretion of his barren wife but would have completed the evidence of Roy Bahadur Pyarilal Das to whom Bepin in course of casual talk, as already pointed out, gave out that he would not sit in judgment over the Will of God. The objects of adoption according to Hindu Law are two fold; the first is religious, to secure spiritual benefit to the adopter and his ancestors by having a son for the purpose of offering funeral cakes and libations of water to the names of the adopter and his ancestors. The second is secular, to secure an heir and perpetuate the adopter's name. A sonless Hindu will there fore be very anxious to adopt a son either for spiritual benefit or to perpetuate his memory but here Bepin was found callous, the reason being this: He was very much attached to his grand‑children Krishna Gopal and his brother Brojo Gopal and his view as expressed in the Will was that the objects of adoption would be fulfilled by the grand children. The Will as already pointed out, provided that in case Sarala takes a son in adoption, and the adopted son dies childless, the property after Sarala's death will go to the two daughters, Bidhu Mukhi and Sashi Mukhi but none of them would be entitled to sell or transfer the same. Then after the death of his daughters his two grandsons Krishna Gopal and Brojo Gopal with their sons and grandsons, heirs and representatives will have 5 annas 6 gandas 2 karas 2 krantis share, each in absolute right and enjoy and possess the same with power to give it away and sell the same ; and Srimati Raj Lakshi Dasi, wife of Ram Gopal, his wayward grandson, will, get the remaining 5 annas 6 gandas 2 karas 2 krantis share for life but she will not be entitled to gift away, sell or transfer the same property in any manner and that after the death of Ram Gopal, his son or sons if there be any he or they will get in equal share the same 5 annas 6 gandas 2 karas 2 krantis share of the remaining property left by him and his wife absolutely. Ram Gopal lost his character and this shocked Bepin very much. He tried his utmost to mend him but could not succeed. Out of sheer disgust he disinherited Ram Gopal but could not forget his wife and childern. This clearly indicates what deep affection he had for the grand‑children. The education expenses of the grandsons and great grandsons were borne by him. He was exceedingly happy at the graduation of his grandson Santosh and this found expression even by overt acts already referred to above. It can hardly be believed that one, who in August 1917 by his overt acts demonstrated in a very‑convincing manner that he was not prepared to giveaway absolutely all his properties to his wife should suddenly change his mind 17 years after and give away everything absolutely to his wife ignoring completely his grandchildren specially when their financial position was not unknown to him. The learned Advocate for the respondent could not give any satisfactory explanation for this change. To our mind there was in fact no change and whatever change is illustrated by the gift was brought about by the undue influence and coercion resorted to by Sarala on. being encouraged by her brother Dinabandhu. Dinabandhu was not well off and had to be rendered financial help from time to time by Bepin. To tone down the temper of his wife Sarala he appointed Radhashyam, her nephew, head‑master of a Primary School, established by him in 1933 on a monthly pay of Rs. 34 and since than Radnashyam has been working there. He lives at Bepin's house with his wife and children and his entire family is maintained with the income of Bepin's property. Bepin from the tenor of his wife's movements and her anxiety for her brother and brother's son could very well understand that to make gift in favour of his wife would be virtually handing over the property to her paternal relations. It is therefore highly improbable that one who was conscious of such position would be agreeable to give away all his properties voluntarily to his wife especially when there was no guarantee that the lady would maintain him throughout his life.
Now let us turn to financial position of the plaintiff. Plaintiff, as already pointed out, was given away in marriage to one Kanailal who was employee in a goldsmith shop styled as Bedhunath Savalal Poddar. An employee in a goldsmith's shop could not be expected to be financially well off and in fact he was rot. Of his three sons only Krishna Gopal is provided but his pay is not sufficient to maintain educational expenses of his children. One of his brothers Ram Gopal was a man of loose morals and the other, namely, Brojo Gopal started business with the capital supplied by Bepin but could not thrive. Bepin knew that his grand‑children would have to lead miserable life unless some provision was made for them. It was also known to him that if he made his wife absolute owner of property, his grand‑children would not be profited in the least, Sarala being hostile to them. It can hardly be believed that being conscious of the fact that an absolute gift in favour of his wife might throw his grand children into a miserable plight, Bepin, who throughout his life showed a great concern for them would be voluntarily agreeable to make any such dispositions. Then again if one looks into the terms of the gift he will be convinced that the disposition was unconscionable. The Will made sufficient provision for the widow but Sarala was infested with a desire to grab the entire property of her husband and her desire materialised. Such absolute gift of the entire property where a part thereof was sufficient to meet her needs cannot be described by a better nomenclature than unconscionable, specially when it was aimed at diverting the chain of succes sion in order to deprive the legitimate heirs, namely, the plaintiff and her sons. It may be asked here that if Bepin's intention was that his property, after his wife's death should go to plaintiff and his children how could he give authority to‑ his Wife to take a son in adoption but an answer to this question will not be far to seek. The authority to adopt was given in July 1941, and 12 years rolled by since then, yet there has been no attempt to take a son in adoption. What does it signify Does it not signify that the authority is an illusive camouflage engineered with a view to screen off the nefarious, scheme from the public gaze Otherwise the authority to adopt in view of the absolute gift becomes meaningless. One cannot be reconciled to the other. On behalf of the defendant respondent it is contended that authority to adopt is not a new thing conceived for the first time on the occasion of the deed of gift but its reference will also be available in the Will, Exh. A. It is true that the Will made provision for adoption but evidence of Roy Bahadur Pyarilal Das indicates that there too the authority to adopt had to be introduced against Bepin's Will. Now in this connection if one turns to investigate what change, if the gift stands, will bring about in the normal course of succes sion, he will be in a position to decipher the truth and cause of wild enthusiasm of Sarala's brother and nephew in the matter of gift. The gift having been made after the marriage the property covered by the deed according to Dayabhaga School comes within the category of Ayautaka Stridhan and it passes in the following order:
(1) Sons and maiden daughters, taking together in equal shares;
(2) Married daughters who have, or are likely to have sons ;
(3) Sons' sons ;
(4) Daughters' sons ; daughters' son does not include step‑daughters'' son ;
(5) Barren married daughters and childless widowed daughters.
The above order is according to the Dayabhaga. The Dayabhaga Sangrabia places the (1) son's son's son, (2) step son, (3) step‑son's son, and (4) step‑son's son's son before barren married and childless widowed daughters.
If there be none of the above relations Ayautaka passes to the following heirs in succession, irrespective of the form of marriage, namely:
(1) Brother;
(2) Mother;
(3) Father;
(4) Husband ;
(5) Husband's younger brother ;
(6) Husband's brother's son ;
(7) Sister's son ;"'
(8) Husband's sister's son ;
(9) Brother's son.
A brother's son is‑preferred to a step‑daughter's son as the latter is not included in the term daughter's son, step daughter's son comes under (11) below
(10) Daughter's husband ;
(11) Husband's sapindas, sakulyas and samanodakas ;
(12) Father's kinsmen.
Here in the present case, as already pointed out, Bepin had, no son by his first wife and Sarala is barren. On Sarala's death, therefore, according to the order of succession referred to above, the property, if the gift stands, will not go to any of the first five categories of persons, namely, sons and maiden daughters, etc. In the absence of adoption, it will pass to Sarala's brother, mother, father and brother's son, i.e., to Nos. 1, 2, 3 and 9 of the second group; Nos. 4, 5, 6, 7 and 8 having no existence. In connection with succession of Stridhan property, the learned Advocate for the respondent was asked if, an adopted son is entitled to inherit both in the paternal and in the maternal lines. The question having been answered in the affirmative, he was asked to cite an authority, but he instead of citing an authority took shelter under commonsense. It is surprising that a senior Advocate of his standing should take shelter under commonsense in response to a query from the Bench when the authors of the Hindu text themselves thought it ‑prudent not to leave the matter to the commonsense of the judges and lawyers. A Hindu wife or widow according to text cannot adopt a son for himself ; the adoption must be made to her husband. Adoption by a woman of a son to herself is invalid and it confers no legal rights upon the person adopted. Adoption has the effect of transferring the adopted boy from his natural family into the adoptive family. It confers upon the adopted the same rights and privileges in the family of the adopter as the legitimate son, except in a few cases ; those cases relate to marriage and adoption and the share on a partition between an adopted and an after‑born son. This is laid down in sub section (3) of section 494 and section 497 of Sir D. F. Mullas book on: Hindu Law‑10th Edition‑page 568. Section 495 of the same volume lays down that subject to the provisions of section 497, an adopted son is entitled to inherit in the adoptive family as fully as if he were a natural‑boon son, both in the paternal and in the maternal line. The law 'regarding Stridhan is not uniform. In section 120, Sir D. F. Mulla dealt with the different texts and gave his opinion about the defini tion of Stridhan according to the Dayabhaga School. The section runs as follows:
"The Dayabhaga of Jimuta Vahana is the leading autho rity of the Bengal School. To understand the definition of Stridhan as given in the Dayabhaga it is important to note the two propositions which have been accepted by all the Mitakashara sub‑schools
(a) Every kind of Stridhan belonging to a woman passes on her death to her heirs ;
(b) But every kind of Stridhan cannot be disposed of by a woman at her pleasure".
The only kinds of Stridhan which she can dispose of at her pleasure and without her husband's consent ate gifts from relations. She cannot dispose of any other kind of Stridhan such as gifts from strangers or property acquired by her by mechanical arts; without' her husband's consent. This is based upon certain text of Katyayana and Narada, The said text runs as follows:
(1) What a woman, either after marriage or before it, either in the mansion of her husband or of her father, receives from her Lord or her parents is called Soudayika (gift from affectionate kindred); and such a gift having by them been presented through kindness, that the woman possessing it may live well, is declared by a law' to be her absolute property. The absolute exclusive dominion of woman over such a gift is perpetually celebrated and they have power to sell or give it away as they please, even though it consists of land and houses. Neither the husband, nor the son, nor the father nor the brother has power to use or to alienate the legal property of a woman Katyayana.
(2) The wealth which is earned by mechanical arts, or which is received through affection from a stranger subject to her husband's dominion. The rest is pronounced to be Stridhan (Katyayana, cited in Dayabhaga Chapter 4, section 1, para. 19).
(3) The property given to her husband through pure affection, she may enjoy at her pleasure after his death, or may give it away; except land or house. Narada".
Let us now turn to the Dayabhaga of Jimuta Vahana. On referring to that work it will be seen that Jimuta Vahana first examines the various definitions, or rather description of Stridhan given in the old Smriti texts. He alters the text of Yajnavalkya by substituting the expression expletive eva for adya so as to confine the terms Stridhan to the kinds of pro perty specially enumerated by Yainavalkya. He rejects the definition of Stridhan given in the Mitakshara, and defines Stridhan in these words:
"That alone is Stridhan which she (a woman) has power to give, sell, or use independently of her husband's control".
Jimuta Vahana, however, does not say what kinds of pro perty can be disposed of by a woman without her husband's consent but immediately after. defining Stridhan, he cites the text of Katyayana arid Narada quoted above. In the light of those texts, and from what more he says in the chapter of Stridhan we are in a position to say:
"(1) Affirmatively, that all gifts from relations constitute Stridhan, except a gift of immovable property made by the husband ; and that gift from strangers also constitutes Stridhan if made before the nuptial fire or at the bridal procession ;
(2) Negatively, that the following properties are not Stridhan, namely
(i) property inherited by a woman ;
(ii) property obtained by her on partition ;
(iii) gifts from strangers, except those made before a nuptial fire or at the bridal procession ; and
(iv) property acquired by her by mechanical arts".
The same thing has been repeated in a nutshell in section 126 which runs as follows: "The property given or bequeathed to a Hindu female whether during her maiden hood, coverture, or widowhood, by her parents and their relations or by her husband and his relations is Stridhan according to all schools, except that Dayabhaga does not recognise immovable property given or bequeathed by a husband to his wife as Stridhan". If the opinion of the text is allowed to prevail the gift will not prejudice the plaintiff or her sons, the reason being this that the property involved being immovable property Sarala is not entitled to get it absolutely. The rule laid down in the Hindu texts regarding the devolution of Stridhan did not however obtain sanction of the judicial pronouncement here and abroad. It is now well -settled that a husband can by gift intervivos or by Will confer upon his wife, and absolute estate in his immovable property. And it is only a question of construction as to what he intended to give or bequeath. This was the view taken in the case of Jagmohan Singh v. Srinath (L R 57 I A 291). The husband either intends that his wife should have life estate in the immovable property or intends that she should have an absolute state. In the former case no rule of Hindu Law is required; in the latter the husband agrees to her full powers of alienation. In both the cases the intention is either expressed or inferred as a matter of construction. In this connection the learned Advocate for the respondent draws our attention to the case of Muhammad Shumsool v. Shenwak Ram (2 I A 7), in which it was held that there was a presumption that the donor intended, where the donee was a woman, to take only a life estate. This dictum had been for some time responsible for considerable uncertainty in the construction of gifts and wills. But recently, however, in Eishnu Singh v. Sri Thakurji Mangal Nain and Bhagwan (72 I A 27), the Privy Council have stated that Muhammad Shumsool's case is "no authority for the proposition that if the terms of the will give the woman an absolute right of disposition, those terms should be ignored". In that connection their Lordships have further drawn attention to the following observations made in Jagmohan Singh v. Srinath: "There is, their Lordships think, no magic in the use of any particular word or form of words; the document must be construed as a whole and its fair import deduced in the ordinary way, and if the conclusion come to is that it confers the estate out and out with no reservation, the rights of alienation will be included just as much .as any of the other incidents of ownership, and just as much where the gift is to a female as where it is to a male". The same thing will be available in section 95 of the Indian Succession Act. The section applies to all Wills made by Hindus and it lays down a rule of construction as to a gift simpliciter, which is uniformly applicable to all cases whether the gift is to 'a female or to a male. Where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the Will that only a restricted interest was intended for him. Here, however, we are not concerned with the construction of a gift but with its very foundation. Though the Hindu texts, as already pointed out, do not approve of absolute gift of immovable properties by a husband belonging to a family governed by Dayabhaga School, their Lordships of the Judicial Committee have not so far disapproved of any such gift. The net result of the Judicial pronouncement therefore is that there can be an absolute gift in favour of wife, and here in the present case the properties covered by the deed of gift will go to the paternal relations of Sarala if the authority to adopt which is suspected to be a veritable camouflage, is not exercised. It may be contended that Sarala being a half educated 'woman having little knowledge in law, could not be expected to be conversant with the legal effect of an absolute gift by a husband in favour of his wife but the answer is that the brain of Mahendra Babu was there. Let us now turn to the deed of gift once more to wind up our discussion finally. The time and place of the transaction and selection of scribe and witnesses are the factors which play no mean part in the determination of the question under review. The scribe Haridas did never write any document at Bepin's house prior to this transaction. Yet he was selected to write an important docu ment ignoring his father, a professional deed‑writer of long experience. The deed again was written in an obscure nook of the house of the scribe about 3 days before the execution with reference to a draft which again was prepared in the house. of the lawyer witness Mahendra Babu of whose unprofessional conduct we have already referred to above, Bepin was in death‑bed and document was executed‑in his bedroom and the witnesses were selected from the persons either interested in Sarala or hostile to Bidhu Mukhi.
On a review of the facts and circumstances of the whole case we feel no hesitation in coming to the conclusion that Bepin was induced to execute the deed by undue influence and coercion and that the deed is illegal, void and inoperative. The learned Advocate for the respondent contends that the prayer for declaring the deed of gift void and illegal not having been coupled with a further relief in the shape of a prayer for setting aside the deed of authority to adopt, the suit must be held barred under section 42 of Specific Relief Act. To decide the point raised it is necessary to look into the provision of the section itself which runs as follows, "Any person entitled to any legal character or any right as to property, may institute a suit against any person denying, or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief, provided that no Court shall hake any such declaration where' the plaintiff being able seek further relief than a mere declaration of title omits to do so."
This history of decrees merely declaratory is interesting. Such decrees are an innovation and they first obtained authoritative sanction in England by section 50 of Chancery Procedure Act, 1852. Before this it was not 'the practice of the Court in ordinary suits to make declaration of right except as introductory to relief which it proceeded to admi nister. Seven years later, India followed suit with section 15 of the Code of Civil Procedure, 1859, when it was enacted that "no suit shall be open to objection on the ground that merely declaratory decree order is sought thereby and it shall be lawful for the Civil Courts to make binding declaration of right without granting consequential relief". This section was, however, repealed by Specific Relief Act of 1877 and is substituted by section 42 which is now the provision of law under which a suit for a declaratory decree can be brought in India. The object of section 42 is to express in definite terms the kind of cases in which the specific of a declaration of right, apart from all further relief may be granted. At the same time care has been taken to avoid multiplicity of suits and to prevent a person getting a declara tion of right in one suit and immediately after the remedy available in the other. This is clear from the proviso of the section; the proviso refers to the status of the plaintiff at the time of filing the suit. The legislature intended by the section that the Court might grant to a plaintiff the relief granted by a Court of Chancery where no relief at Common Law was available. It must be remembered that it is not the intention of the legislature to lay it down as a rule that any one claims any interest in property present or future ought be allowed to ask the Court to give him an opinion on his title. The proviso to section 42 operates as a check upon the granting of declaratory decrees; the Courts are ‑expressly warned not to make any declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so. The argument of the learned Advocate if tested in the light of the proviso to section 42 referred to above will fade away. On the date of the deed of gift there was of course a deed of authority to adopt but this authority not having been exercised as yet, a prayer for declaring the deed of authority void, if made, would have been considered premature for want of cause of action.
The next argument advanced by Mr. Das is that the gift having been made by the absolute owner, the plaintiff is not competent to interfere with the donees' possession under the deed. This contention also does not appeal to us at all. Here the plaintiff does not want the property but simply prays for declaring a document which has been brought into existence to defeat her interest void. Then again the deed having opened an avenue for the widow to waste the property by alienation, there cannot be any manner of doubt that any of the prospective heirs, besides the reversioners, is competent to bring a declaratory suit for protection of the property. In this connection the learned Advocate for the respondent has drawn our attention to the cases of (21 A 169) Strimathoo Mothoo Vilia Ragoonadah Ranee Kolandapuree Nathchiar alias Kathama Natohiar and others v. Dorasinga Tever alias Cowry Vallaba Tever (1); (I L R 8 Cal.13) Greeman Singh and others (defendants) v. Wahari Lall Singh (plaintiff) (2); (I L R 35 Cal. 777) Samarendra Chandra Dev v. Birendra Kishore Dey (3); (4) Sheopanson Singh 'and others v. Ramanandan Singh and others (43 1 A 91).
What happened in Strimathoo's case was this: There was a suit for a declaratory decree to the effect that the plaintiff was entitled as next heir after the death of the first appellant to the Sheoagunga Zemindary, for immediate part possession and management thereof, for maintenance, and for other reliefs in respect of waste committed by several of the appellants; the claim was resisted by the defendants. The Courts in India, held, that the respondent was entitled to a decree declaratory of his title as next heir. The matter was then taken to Privy Council and their Lordships of the Judicial Committee recommended reversal of the decree. The law laid down in that case was that a declaratory decree could not be made unless there was a right to consequential relief capable of being had in the same Court, or under special circumstances as to jurisdiction, in some other Court, but here in the present case there is no scope for any consequential relief, the widow being entitled to retain the property till her death under the Hindu Law.
Next comes the Greeman's case. In that case what happened was this : The plaintiff, claiming to be entitled in reversion to certain property on the death of his grand father's widow, sued for a declaration that certain alienations made by the widow were void as against him. To this suit the widow and her alienee were defendants. The defence was that the plaintiff was not the reversioners and certain parties, who claimed to be real reversioner, intervened, and were made defendants by order of the Court. The plaintiffs obtained a declaration of his reversionary right, and deeds of sale were on certain conditions, declared void as against him. The intervenors appealed to the High Court. On these facts a Division Bench of the Calcutta High Court held as follows: "Notwithstanding the provisions of section 42 of the Specific Relief Act I of 1877, the plaintiff was not entitled to the relief sought and that the defendants who claimed as reversioners should not have been made parties to the suit."
The facts of the case are altogether different from those of the present case and the law laid down again has no applica tion to this case. The same remark applies to the case of Sheopanson Singh v. Ramnandan Singh and others.
In the case of Samarendra Chandra Dev v. Birendra Kishoye Dev what was laid down is this : "A person cannot sue for a declaration of his right to immovable property, which may never come into existence; a mere contingent right which may never ripen into an actual existing right, is not always sufficient to ground an action for such a declara tion". The 'present suit not being a suit for declaration of right to immovable property or for declaration of a contingent right Samarendra's case cannot be said to have any bearing upon the present case. Moreover, the principle laid down in the case if closely scrutinized, will show that it did not strictly prohibit institution of a suit for declaration of contingent right. The learned Advocate for the appellant has drawn our attention to the following cases;
(1) Chottoo Missser v. Jemah Misser (I L R 6 Cal. 198);
(2) Rani Anand Kunwar and another v. The Court of Wards on behalf of Chandra Shekhari, a minor (plaintiff) (I L R 6 Cal. 764);
(3) Puttanna alias Keshava Bhatta v. Ramakishna Sastry and others (I L R 30 Mad. 195),
(4) Tarak Chandra Das v. Anukul Chandra Moobherjee (49 C W N 760).
In the case of Chottoo Misser the law laid down was this: Persons having a contingent reversionary interest in lands, expectant on the death of a Hindu widow. though they cannot sue for a declaration of title to the lands as against third persons, may sue as presumptive heirs to set aside alienations of the property made by the widow, upon the ground of there being no legal necessity for such alienations, or to restrain her from committing waste. Unless such suits could be brought, it might be impossible, if the widow lived to a great age, to bring evidence after her death to prove that there was no legal necessity for the alienations. Nor would it be possible to prevent the widow from committing irremediable mischief to the estate. In Rani Anand Kunwari's case almost the same principle was enunciat ed on different facts. What was laid down is this. "Although a suit, to contest an adoption made by a Hindu widow of a son to her deceased husband, may be brought by a contingent reversionary heir, yet it is not the law that any one who may have a possibility of succeeding to the estate of inheritance held by widow for her life is competent to bring such a suit. The right to sue must be limited. As a general rule, the suit can be brought, by the presumptive reversionary heir, that is to say, by a person who would succeed to the estate of the widow were she to die at the time of the suit."
Next comes the case of Puttanna alias Keshva Bhatta (plaintiff) Appellant v. Ramakishna Sastri and others (Defend ants) Respondents. In that case it was held as follows:
The right of the presumptive reversioner to sue for a declaratory decree under section 42 of the Specific Relief Act is not restricted to the class of transactions referred to in illustrations (e) and (f ) to that section, i.e., to transactions by the widow herself.
Where on the death of last made owner, leaving a widow, the properties belonging to him, are claimed by devisees under a will alleged to have been left by him, the nearest reversioner in existence is entitled to sue for a declaration that the alleged Will was invalid and did not bind his reversionary interest.
Next comes the case Tarak Chandra Das and Another Defendants Appellants v. Anukul Chandra Mukherjee Respondent. The law laid down in that case was thus: "A person having even a contingent right in property may sue for a declaration under section 42 of the Specific Relief Act, although no declaration can be made on the basis of a mere chance or hope.
"The Court may in its discretion refuse to make a declara tion as to a contingent right, if it considers the claim to be too remote or that the declare 'would be ineffectual.
"The question is really not one of the jurisdiction but of discretion."
From the trend of the aforesaid decisions it is clear that a suit by a reversioner immediate or remote for declaring an alienation by the widow void is not barred under section 42. Here of course the alienation was by the absolute owner but that will not make any difference in applying the principle to this case when the gift was obtained by the absolute owner by undue influence by way of opening an avenue for her to deal with the property in a manner prejudicial or detrimental to the interest of the plaintiff who is to succeed to the estate after the widow's death.
In the result tile appeal succeeds and is accordingly allowed with cost and the order of dismissal set aside and the suit is decreed with cost. It is hereby ordered that the deed of gift is void and illegal.
.‑I agree.
K. B. A./M.. S. Appeal allowed.
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