Patna High Court
Mohammad Yakub And Ors. vs Abdul Quddus And Ors. on 2 August, 1922
Equivalent citations: 68IND. CAS.372
JUDGMENT Jwala Prasad, J.
1. This appeal arises out of a suit for recovery of properties, moveable and immoveable, mentioned in Schedules 1, 2, 3 and 4 of the plaint, with the exception of the shares in Mouza Madarpar, Pargaua Goa, Tonzi No. 2569, and Chandpura, Tonzi No. 2370, with respect to which the plaintiffs prayed for confirmation of their possession upon an adjudication of their right thereto and on invalidating the deeds mentioned in paragraphs 10 and 15 of the plaint.
2. The facts of the case have been fully and clearly given in the judgment of the Court below, which may safely be adopted for the purpose of this appeal. The following geneology will show the relationship of the parties:
Moulvi Imdad Hossain, died on 26th January 1915.
Moulvi Moulvi Hajiz Moulvi Ishfaq. Moulvi Abdul Moulvi Moulvi Abdul
Ali Hasan Muhammad Muhammad Razzak, Abdul Wahab, Aziz,
Yakub, Yusuf, plaintiff No.2. defendant died on 15th
Plaintiff defendant No. 7. January 1912
No. 1. No. 6. Musammat Bibi
Azmat,
Defendant
No. 5.
Abdul Quddus, Abdul Waddud, Fakhruddin, Bibi Zohra, Mohiuddin,
defendant No. 1. defendant No. 2. defendant No. 3. defendant No. 4.
3. The two plaintiffs are the sons of one Imdad Hossain. Defendants Nos. 1 to 3 are the sons, defendant No. 4 is the daughter, and defendant No. 5 is the widow, of Moulvi Abdul Aziz, the youngest son of Imdad Hossain, Defendants Nos. 6 and 7 are two other sons of Imdad Hossain. Imdad Hossain had two more sons with whom we are not concerned in this litigation. In all he had seven sons. He died on the 26th of January 1915, at the age of about 97 years. His wife had predeceased him in 1891. He had during his lifetime acquired considerable property by his own exertion. On the 17th of February 1877 he divided by a deed of partition, (Exhibit 14), the bulk of the properties acquired by him up to that time amongst all his seven sons keeping some of the properties for himself. Moulvi Abdul Aziz, however, lived with his father, while all the other sons lived separately from him.
4. The plaintiffs' case is that Abdul Aziz managed his own properties as well as the properties and business of his father from 1888 up to September 1911, and as his father advanced in age he became weak mentally and physically, and in the last two decades of his life lost his senses and became of unsound mind and incapable of managing his affairs. Moulvi Abdul Aziz, taking advantage of the unsoundness of his mind and exercising undue influence over him, caused several deeds to be executed by his old father in his favour, which deeds are invalid and without consideration. Moulvi Abdul Aziz died on the 15th of January 1912. The properties left by him and detailed in Schedule 4 of the plaint were inherited by defendants Nos. 1 to 5 and his son, Mohiuddin, since deceased, and his father, Moulvi Imdad Hossain, as his legal heirs. A few days after the death of Abdul Aziz, his son Mohiuddin also died. Imdad Hossain, as grandfather of Mohiuddin, received 2/3rd of the share inherited by Mohiuddin in the properties of his father Abdul Aziz. At that time defendants Nos. 1 to 5, along with Sheikh Mohammad, brother-in-law of Abdul Aziz, used to live with Moulvi Imdad Hossain. Sheikh Mohammad also took advantage of the insanity of Moulvi Imdad Hossain and, by procuring recommendation of the local authorities of Chapra for the time being, got a hibanamoh, dated the 10th March 1912 (Exhibit 16), executed in favour of defendants Nos. 1 and 2 and defendant No. 4, step children of defendant No. 5, in respect of the share which Imdad Hossain had received by inheritance from Moulvi Abdal Aziz. After the death of Abdul Aziz, defendant No. 1, his son, and defendants Nos. 6 and 7 gained influence for some time over Moulvi Imdad Hossain. Defendant No. 6 got a hibanamah (Exhibit 9), dated the 26th April 1912, executed in respect of the properties situate in Patna. Defendant No. 7 got a mukarrari dated the 4th July 1912, executed in respsct of Mouza Hukam, at a low jama. Both the defendants Nos. 6 and 7 got a taksimnamah having the force of a wasiatnamah, Exhibit 2(sic), dated the 18th January 1913, executed in respect of the entire property which was in the name of Abdul Aziz with the exception of the properties (sic) to him by the deed of partition (exhibit 14), dated the 17th of February 1877. Afterwards, defendant No. 7 gat a mortgage-band (Exhibit 15), dated the 15th June 1913, executed in his favour by Moulvi Imdal Hossain and, finally, they got a hibanamah, dated the 11th April 1914, executed in their own favour, bat the said deed was not registered as Moulvi Imdad Hossain was not in his senses. The plaintiffs impugn all the aforesaid deeds in favour of Abdul Aziz, or in favour of the defendants, in the case, as having been executed when Imdad Hossain was "insane" and as being "invalid and (sic) and void" in consequence, and assert that by the (sic) neither the right nor the possession of Moulvi Imdad Hossain was transferred in the properties mentioned in Schedules 1, 2 and 3 which belonged to him, or in the property of Abdul Aziz mentioned in Schedule 4 to the extent of the share inherited by him therein after the death of Abdal Aziz in 1912, The plaintiffs, therefore, state that after the death of Imdad Hossain, they, being the sore of Imdad Hossain, became entitled to possession of their legal shares in the properties maimed in the aforesaid Schedules by right of inheritance, but that the defendants were wrongfully in possession of the plaintiffs share. Hence the plaintiffs seek to recover possession of their share in the paid properties by declaring their right and title therein and by invalidating the aforesaid deeds detailed in paragraphs 10 and 15 of the plaint. With respect to their shares in Mouzsa Madarpur, Pargana Goa, Tauzi No. 2569, and Chandpura, Pargana Goa, Touzt No. 23(sic)0, they allege that they are in possession and hence they want their possession to be co firmed. They also pray for mesne profits from the date of the institution of the suit up to the date of realisation. They claim that, as Imdad Hossain was insane from 1892 up to his death on the 28th of January 1915, the said period should not be taken into account while considering limitation.
5. The plaintiffs' claim is resisted mainly by defendants Nos. 1 to 5, the heirs of Abdul Aziz. They plead that the suit was barred by limitation and the rule of estoppel, and that it was bad for misjoinder of parties and causes of action. On the facts, they deny that Moulvi Imdad Hossain was insane or of unsound mind and incapable of managing his affairs. They assert that he was a shrewd man of business, was managing his own properties as well as the properties of his son Abdul Aziz, and that he executed all the deeds in question of his own free will and accord while in full possession of his senses and received good consideration for each and every one of them, and that no fraud or undue influence was ever exercised upon and are valid and binding upon the plaintiffs. In short, they say that the plaintiff are not entitled to any relief.
6. Defendants Nos. 6 and 7 also pat in separate written statements. They support the deeds that were executed by Imdad Hossain in their own favour, but dispute the validity of the deeds in favour of the ancestor of defendants Nos. 1 to 5, In the Court below the following; issues ware raised by the parties:
1. Whether the suit is maintainable?
2. Whether the plaintiffs have got any cause of action for this suit?
3. Whether the suit is barred by limitation?
4. Whether the suit is barred by the principle of estoppel?
5. Whether the suit is bad for misjoinder of parties and of causes of action?
6. Wan Moulvi Imdad Hossain a parson of unsound mind as alleged in the plaint and was he not competent to execute the deeds in question?
7. Were the deeds sought to be set aside executed under undue influence and were they brought about by fraud?
8. Were the said deeds executed for consideration and were they anted upon. If not, are they valid and binding?
7. Issues Nos. 1, 2, 4 and 5 are pleas in bar of the plaintiffs' suit. They were decided in their favour and we are no longer concerned with them.
8. Issues Nos. 6, 7 and 8 were decided by the Court below against the plaintiffs and in favour of the defendants. As a result of his finding on those as well as on Issue No. 3, the learned Subordinate Judge dismissed the plaintiffs' suit. Hence this appeal by the plaintiffs.
9. With referenda to Issue No. 6, the learned Subordinate Judge has recorded the finding that "Imdad Hossain was not of unsound mind and incompetent to execute the deeds sought to be set aside in the suit." He has arrived at this finding upon a thorough review of the evidence and the facts and circumstances of the case. The question of insanity of Imdad Hossain was first raised at the time when he executed a dead of gift in favour of defendants Nos. 6 and 7 in April 1914. The Sub Registrar refused to register the deeds and his order was upheld by the District Registrar (Exhibits 20 and 21). This led to an application being made by Mohammad Ayub, son of plaintiff No. 1, before the District Judge of Saran, under Act IV of 1912, for his appointment as guardian of Moulvi Imdad Hossain on the ground of the letter's insanity, The District Judge refused the application by his order (Exhibit A) dated the 29th June 1914.
10. The retired Assistant Surgeon, Baba Upendra Narain Rai, who has been examined in this case as P. W. No. 3, and Major F. P. Commor, I.M.S., were examined as witnesses in that case. Their certificates and deposition in that case are Exhibits N, 27, R and 34 respectively. In the opinion of the Assistant Surgeon Imdad Hossain was suffering from "softening of the brain" and was not capable of managing his own estate. This was according to him, due to senility or old age: (vide his certificate, Exhibit 27, and his deposition in the Lunacy Case, Exhibit R, and his deposition as witness No. 3 in this case). On the other hand, the Civil Surgeon and Dr. K. C. Das, after testing his mental powers in several ways, stated in their certificates--"His mental powers are good for a man of his age and his power of reasoning clear and logical." The Civil Surgeon confirmed this opinion by his evidence (Exhibit 34, dated the 23rd of June 1914) in the Lunacy Case. I would quote some passages from his deposition. Says the Civil Surgeon--"He answered questions intelligently and logically without exception. I asked him how he lived, what he ate, the time of year, the time of day. I asked if he had any case. He said a case was pending regarding his property. Ha wished to leave property to two sons whom he named (Wahab and Yusaf) because his other sons had already had property left them; that he bore them no ill will. I asked other questions too. I should think ha would transact business with great difficulty and very badly owing to his infirmity, by which I mean the weakness of his mind and body, due to old age. Ha is extremely infirm in body and is also infirm in mind, I should call it senile mental infirmity. He would be math more easily influenced by those round him than a man in the prime of life and in good health." In spite of his mental and physical infirmity, the Civil Surgeon in the cross-examination stated that he would consider him "quite insane."
11. Witnesses on both sides have been examined regarding the state of the mind of Imdad Hossain in the last two decades of his life. The witnesses on behalf of the plaintiffs cite some specific acts of insanity, such as mistaking one person for another, dusting the wall, drinking Ghee from Khibhdi and drinking tea from teapot and mistaking grapes for pieces of stone. The learned Subordinate Judge very rightly holds that these instances only prove temporary "aberrations of intellect" or temporary "insane delusions." They are isolated cases, few and far between, and would not necessarily indicate that he was incapable of managing his affairs, and do not constitute such acts on the part of Moulvi Imdad Hossain as an insane person only would have done. They may have been due to loss of memory, absent-mindedness and other circumstances and are not inconsistent with the acts of a sane man. The view taken by the learned Subordinate Judge is supported by standard works on Medical Jurisprudence, such as of Lyon and Gabble. Heaps of documents have been filed in the case which the learned Subordinate Judge has relied upon for showing that Moulvi Imdad Hossain's intelligence was of a high order and that he could transact business rationally. He would add up large sums, make pertinent and careful corrections in draft deeds, keep accounts and could understand intricate questions of fact. He was a Mutwali of a mosque and w(sic)qf properties appertaining thereto and had civil and criminal caws regarding a drain near the mosque as evidenced by Exhibits U-1 and U-2. He was plaintiff in that litigation. The suit terminated with the judgment and the decree, dated the 18th June 1907. Two of the plaintiffs' witnesses, namely, the 2nd and the 8th witnesses, who cite some instances of the acts of insanity such as those referred to above, entered into transactions with him which transactions are still in force. These witnesses would not have entered into such transactions if in fact they knew or believed Imdad Hossain to be a man of unsound mind. Muhammad Ayub, son of plaintiff No. 1, who had applied to the District Judge in 1914 to have imdad Hossain declared a lunatic, had brought a suit claiming Mouza Hukam on the basis of a verbal gifs from Mould Imdad Hossain. Maulvi Imdad Hossain denied this gift and the dispute was referred to the arbitration of two Vakils and a Deputy Magistrate. Moulvi Imdad Hossain was examined as a witness in that case. His deposition (Exhibit Q) clearly shows that he was able to give intelligent replies to the questions addressed to him that he understood the business and that he was fully alive to his own interest. This happened on the 27th of October 1912. Similarly, the Succession Certificate (Exhibit W), dated the 29th April 1912, shows that he took interest in his affairs and applied for Succession Certificate to recover debts due to his deceased sod, Abdul Aziz. The learned Subordinate Judge has referred to a number of transactions entered into by Imdad Hossain within two years of his death as showing that "far from being incapable of managing his affairs and protecting his interest...he was extremely mindful of his own interest." The plaintiffs alleged in paragraph 13 of the plaint that Moulvi Imdad Hossain had become "fatir-ul-aql" since 1893 and died, while in this slate of mind in 1915. The word "fatir-ul-aql literally means unsoundness of mind or at least imbecility of mind.' This the plaintiffs have failed to establish. He was a Pleader and had retired from the profession in the year 1872. He was a shrewd man of business and acquired considerable property by his own self-exertions. He himself divided all his properties amongst his sons in 1877 keeping only Mahal (sic) Diara and Mahal Mahaji Barhara in which he bad two-annas share, for himself. Even after partition, he seems to have acquired considerable properties by his own exertions. No doubt,as he was growing older he was gradually losing his physical and mental strength, and when the Doctors examined him in 1914, at the age of 97, which is an extreme age for a hot climate like that of India, he suffered from senility and, as the Civil Surgeon states, he must have been managing his business with difficulty and have been liable to be easily influenced by those around him. His infirmity must have been hastened by the death of his youngest son, Abdul Aziz, in 1912, who, after the partition of 1877, always lived with him and to whom be was much attached, but his faculties were not so impaired as would amount to insanity or unsoundness of mind. This is clear from the evidence of the second witness examined by the plaintiffs. The learned Subordinate Judge is, therefore, right in his finding that the plaintiffs have failed to establish that the transactions in question were void on account of Imdad Hossain being incompetent to enter upon them by reason of his not being a man of sound mind under Sections 11 and 12 of the Indian Contract Act, Section 12 says that a parson is said to be of a sound mind for the purpose of making a contract it at the time he makes it he is capable of understanding it and forming a rational judgment as to its effect upon his interests; in other words, the test of soundness of mind is that he is capable of understanding the business and of forming a rational judgment as to its effect upon his interest. There being a presumption in favour of sanity, the parson who relies on the unsoundness of mind must prove it sufficiently to satisfy this test: Hall v. Warren (1804) 9 Ves. (Jun.) 605 at p. 611 : 7 Rule R. 306 : 32 E. Rule 738. Mere weakness of mind is not sufficient as is laid down in the case of Durga Bakhsh Singh v. Muhammad Ali Beg(sic) 27 A. 1 : 7 Order C. 287 : 31 I. A. 235 : 8 Sar. P. C. J. 725 (P. C.), Although it is not necessary to prove utter mental darkness or congenital idiocy, Tirumamagal Ammal v. Ramasvami Ayyangar 1 M. H. C. Rule 224, Ram Sahye v. Laljee Sahye 8 C. 149 : 9 C. L. Rule 457 : 6 Ind. Jur. 306 : 4 Ind. Dec. (n. s.) 95, Drew v. Nunn (1879) 4 Q. B. D. 661 : 48 L. J. Q. B. 59 : 40 L. T. 671 : 27 W. Rule 810, the plaintiffs must establish that Imdad Hossain was incapable of understanding business and forming rational judgment as to its effect. This the plaintiff have failed to do.
12. Assuming that Imdad Hossain was suffering from occasional aberrations of mind, as has been sought to be proved by the plaintiffs, the plaintiffs must further show that the particular transactions in question were entered into when he was subject to those occasional fits. There is no evidence that the documents in question were executed at a time when Imdad Hossain was suffering from any hallucination of his brain. Therefore, the documents in question were not executed when he was 'insane' and that they are consequently and null and void as is stated in paragraph 17 of the plaint. Issue No. 6 was, therefore, rightly decided by the learned Subordinate Judge against the plaintiffs.
13. The learned Vakil on behalf of the plaintiffs then contended that, although the documents in question were not null and void on the ground of Imdad Hossain being of unsound mind, yet they are liable to be set aside inasmuch as they were executed on account of undue influence and pressure having been brought to bear upon him by the donees under the gift--firstly, by his youngest son, Abdul Aziz, who always used to live with him and after the death of Abdul Aziz in 1912, by Sheikh Mohammad, brother-in-law of Abdul Aziz, and, lastly, by defendants Nos. 6 and 7. It is necessary in this connection to place here the history of the general transitions, Imdad Hossain, as already stated, had divided the bulk of his properties timing all his seven sons in 1877 under a Tahsimnamah (Exhibit 14). Under the Taksimnamah he gave 4 annas 1 karant 5-masant share in village Madarpur Goa (Touzi No. 256(sic)) and 1 anna 4-pies share in Chandpura (Touzi No. 2370) to each of his sons Mohammad Yakub and Moulvi Abdul Aziz. Mohammad Yakub dealt in cloth and his business failed. Accordingly he sold his 4-annas 1-karant 5-matant share in Monza Madarpur Goa to his father, Moulvi Imdad Hossain, in 1839. This was given in conditional mortgage by Imdad Hossain to his con Abdul Aziz on the 14th of March 1893 per Exhibit 35, to secure a loan of Rs. 7,000. On the 16th of January 1894, the plaintiff, Mohammad Yakub, executed a sale-deed (Exhibit 1) in favour of Abdul Aziz with respect to his 1-anna 4-pies f hare in another Mouza called Chandpura (Touzi No. 2(sic)70), for Rs. 3,500. Previous to this, Moulvi Imdad Hossain had under date the 28th of January 1891 taken out Baiharsana of 6 annas 6 pies share of Shankerpur Harbans for Rs. 7,000 from one Moulvi Abdul Gafar. On the 18th of August 1(sic)03, he assigned half of the Baiharsana share in Shankerpur Harbans to Moulvi Abdul Aziz for Rs. 3,500 (Exhibit P-1 or P-2). Subsequently Imdad Hossain acquired 14 annas of Shankerpur Harbans, 14 annas of Shankerpur Aiyaama, about 3-annas 7-pies 5-karanti in Shankerpur Lila, Pergana Barai, and tome ether shares in the said villages at d also one anna of Hukam, from 2nd October 1905 to 19th October 1(sic)07, partly in his own name and partly in the farzi name of his sons Abdul Wahab and Abdul Aziz, This was by means of four sale-deeds and a deed of exchange executed by the owners of the shares referred to above: vide Exhibits H, H (sic) and 32). The other two deeds do not appear to have been filed in this suit.
14. On the 11th of December 1907, he sold 4 annas 1-karant 5-masant share of Madarpur, Perugna (sic), which he had acquired from the present plaintiff Mohammad Yakub in the year 1889, and 3-annas 3-pies share in Shankerpur Harbans and Shankarpur Aiyaama, 4 pies 10 karant share in Shankerpur Lila, for Rs. 7,500 (per Exhibit 3). He set off the sum of Rs. 7,000 which was due to Abdul Aziz under Baiharsana (Exhibit 35), dated the 14th March 1893, with respect to Madarpur, Pergana Goa. On the 7th December 1907, he executed a deed of exchange in favour of Abdal Aziz, whereby he exchanged 8 annas, 2 karanti 10-masant of Madarpur Pargana Goa, belonging to Abdul Aziz, for 7-annas 6 pies share in Shankerpur Harbans and Shankerpur Aiyaama, and 10 pies share in Lila belonging to himself. On the 23rd of December 1907 he exchanged (by deed Exhibit 4) his 3 annas 3 pies share of Shankerpur Harbans end Shankerpur Aiyaama and 1 1/2 pies of Shankerpur Lila for 2-annas 8 pies share of Chardrura belonging to Abdul Aziz (1-aima 4-pies share which Abdul Aziz had purchased per Exhibit 1, in 1894, from the plaintiff No 1, and his 1 anna 4 piss share under the Taksimnama Exhibit 14 of 1877). Thus under the aforesaid deeds, Abdul Aziz got the entire share required by Imdad Hossain in Shankerpur Harbans, Shankerpur Aiyaama and Shankerpur Lila. called Shakri, and Imdad Hossain got 8 annas odd of Madarpur Goa and 2-annas 8 pies of Chandpur.
15. Besides the aforesaid documents, Imdad Hossain executed a deed of gift (Exhibit 6, or P-5), dated the 28th April 1910, with respect to 4 annas 6 pies share of Madarpur, Pargana Barai, in favour of Abdul Aziz. On the 7th March 1911, he executed a mokarrari deed (Exhibit 7 or P-5) in favour of Abdul Aziz with respect to 3 annas 6-pies in Madarpur Barai. Under this deed a sum of Rs. 400 par mensem was payable to Moulvi Imdad Hossain as landlord's rent and Rs. 300 to Moulvi Wahab (defendant No. 7), one of the sons of Imdad Hossain. On the 14th of August 191(sic), he made a waqf of the Haq Ajri or rent reserved of Rs. 400 in favour of Sahebgunj Mosque of which he appointed Moulvi Abdul Aziz as Mutwali. Abdul Aziz died in January 1912, and on his death Imdad Hossain conveyed by a deed of gift, dated the 10th March 1912, (Exhibit 5), the one-sixth share of the properties which ha had inherited from Abdul Aziz to some of the children of the latter.
16. On the 25th April 1912, Imdad Hossain, executed a deed of gift (Exhibit 9), with respect to villages Darweshpur Diara and Darweshpur Raonia in favour of defendant No. 6. On the 8th January 1913 the executed a Tansikhnamah (deed of revocation) in which he declared some of the aforesaid transactions to have been farzi and that his properties should be inherited by his heirs according to law.
17. On the 4th of July 191(sic), he executed a mokarari istamrari in favour of his son Abdul Wahab. On the 15th Jane 19(sic)3 he executed a mortgage-bond in favour of Abdul Wahab. On the 11th April 1914 he executed a Hibanamah, in favour of defendants Nos. 6 and 7, but this deed was not registered and we are not concerned with it in this litigation.
18. The deeds in favour of Abdul Aziz are impugned as having been executed without any consideration and on account of the undue influence of Abdul Aziz and as being merely furzi. The earliest decument is the conditional sale. Exhibit 35 in favour of Abdul Aziz with respect to Madarpur Goa which Imdad Hossain had acquired by purchase from his son in 1891, for Rs. 7,000. Now, Abdul Aziz was living with his father and the learned Subordinate Judge has held that the properties which he had got under the Taksimnamah (Exhibit 14) were managed by the latter. The expenses of Ablul Aziz were borne by Imdad Hossain. Abdul Aziz was the youngest son and was loved by Imdid Hossain more than his other sons. After allotting to them properties by deed of partition of 1877, he helped his other sons also sometimes by giving them money and sometimes purahasing their properties for adequate prices when they were in need of money. He also paid them monthly allowances, and helped them in various other ways; vide the deposition of plaintiff No. 1 himself. There is, therefore, no wonder that he bore all the expanses of Abdul Aziz who was obedient to him and lived with him and also purchased the properties in question sometimes with the income of the properties belonging to Abdul Aziz and which ha held in his hands, and sometimes from his own pocket. The recitals in the documents clearly prove this in this view the question whether the consideration of the deeds in question was satisfied out of the money belonging to Abdul Aziz or to his father Imdad Hossain seems to be immaterial. Imdad Hossain has cot been shown to be otherwise than a conscientious person and when he states in the documents, such as Exhibits 35, 1, 2 and 8 that the consideration money of those documents was met out of the income of the proportion of Abdul Aziz, there is no reason to suspect that these statements are false and fictitious. He has recited the history of the transactions in all tae subsequent documents: in other words, he has repeatedly confirmed the transactions in favour of Abdal Aziz.
19. Now, Exhibit 3 is a sale-deed, dated the 11th December 1907, executed in favour of Abdul Aziz with respect to the properties set forth therein. The details of how the consideration pass id have been recited in the documents. The consideration of the exchange deeds (Exhibits 4 and 5) are the properties belonging to Abdul Aziz. The stamps of all these documents were purchased through Mohammad Ayub, son of plaintiff No. 1, who also attested Exhibits 4 and 5 and who, as the learned Subordinate Judge says, was looking after the unit on behalf of the plaintiffs in the Court below. The sale deed (Exhibit 3) was attested by Yakub, plaintiff No. 1, and Yusuf, defendant No. 6, and Iahfaq, since deceased. The scribe of Exhibit 4 is Moulvi Yusuf, defendant No. 6. It is, therefore, idle on the part of the plaintiffs to impugn these documents on the ground of want of consideration or undue influence brought to bear upon Imdad Hossain by Abdul Aziz.
20. It is said that the consideration of the sale-deed Exhibit 1 of 1894, with respect to Chandpur, in favour of Abdul Aziz must have been borne out of the; money belonging to Imdad Hossain and not that of Abdul Aziz, inasmuch as all the income of Abdul Aziz, which Imdad Hossain had in his hands, was accounted for in the earlier document, the Baiharans, Exhibit 35, dated the 14th March 1893. We do not at ash much importance to this argument. Even if there be any substance in this contention, the document will be valid as a deed of gift on the principle laid down by their Lordships of the Judicial Committee in the case of Is nail Mussajee v Hofiz Boo 10 C. W. N. 570: 3 A. L. J. 353 : 3 C. L. J 484 : 8 Bom. L. Rule 379 : 16 M. L. J. 168 : 1 M. L. T. 137, 33 C. 773 : 33 I. A. 86 (P. C.), Gostho Behary Ghosh v. Rohini Gowalini 4 Ind. Cas. 541 : 18 C. W. N. 692 inasmuch as the intention of Imdad Hossain was obviously to convey the property to his ion Abdul Aziz and this intention is supported by the subsequent conduct of Imdad Hossain in taking the property in exchange for certain shares of his in other properties which he had acquired (vide Exhibit 5), The relation-ship between the parties leads also to the same conclusion. The documents Exhibits 6, 7 and 8, convey to Abdul Aziz the interest held by Imdad Hossain in 4-annas 6 pies by way of gift and mokarrari and waqf-namah. These transactions, therefore, require no other consideration than that of love and affection entertained by Imdad Hossain towards his son for his obedience and dutifulness towards him. The aforesaid documents are then impugned on the ground that they were brought into existence on account of undue influence exercised by Abdul Aziz over his father. Now, the circumstances urged in support of this plea are that Abdul Aziz was always living with Imdad Hossain and that he took advantage of the weakness of his body and mind and his extreme old age. These in themselves are not sufficient to raise any presumption of Abdol Aziz having really dominated the will of his father in the execution of the document in his favour, as was held in the case of Is nail Mussajee v. Hafiz Boo 10 C. W. N. 570: 3 A. L. J. 353 : 3 C. L. J 484 : 8 Bom. L. Rule 379 : 16 M. L. J. 168 : 1 M. L. T. 137, 33 C. 773 : 33 I. A. 86 (P. C.). There is nothing to show that Abdul Aziz took advantage of the old age of his father. It has been already shown that old though he was, and though he was losing the strength of his mind and body, he wax able to exercise an independent and intelligent mind over what he was doing. On the other hand, he seems to have taken great interest in his affairs, and whatever weakness he might have shown in other directions he showed strength of mind in dealing with his properties and business; vide Exhibit Q, deposition of Moulvi Imdad Hossain, dated the 27th October 1912: Exhibit W, Succession Certificate, dated the 29th April 1912: and heaps of documents, such, as notes, memoranda, amounts, etc., kept by Imdad Hossain himself and relied upon by the learned Subordinate Judge. There is no evidence of undue influence having been exercised over him by Abdul Aziz. The events subsequent to the death of Abdul Aziz show that he was transacting his business not on account of any undue influence exercised over him by Abdul Aziz, for although that influents ceased, he executed on the 10th of March 1912 a deed of gift with respect to the share inherited by him in the properties of Abdul Aziz in favour of the latter's children. This document was executed after consultation with the District Magistrate, a Deputy Magistrate and a Vakil of Chapra. The document has been attested by them. The object of the document obviously was to make provision for the children of his beloved son, Abdul Aziz. He was not unmindful of the interest of his other sons, for he executed documents in favour of defendants Nos. 6 and 7, such as the deed of gift (Exhibit 9), dated the 26th April 1912, mokarrari istamrari dated the 4th July 1912 and mortgage-bond, dated the 15th June 1913. To the Civil Surgeon in June 1914 he said: "He wished to leave property to two sons" whom he named (Wahab and Yusaf) because his other sons had already had property "left them", vide Exhibit 34. This was his intention which he seems to have fulfilled by giving properties to Wahab and Yusuf, defendants Nos. 6 and 7, by means of the documents referred to above. In the face of the evidence of the Civil Surgeon it is impossible to contend that he executed these documents on account of nay undue influence brought to bear upon him or without his understanding the pros and cons of the transactions. The declaration of Imdad Hossain to the Civil Surgeon was made without any prompting from anybody. Therefore, it must be held that none of the documents in question was executed on account of undue influence.
21. Now, the leaned Subordinate Judge says that the plea of undue influence is inconsistent with the plea of unsoundness of mind and he relies upon the decision quoted above in Is nail Mustafa v. Hafiz Boo 10 C. W. N. 570: 3 A. L. J. 353 : 3 C. L. J 484 : 8 Bom. L. Rule 379 : 16 M. L. J. 168 : 1 M. L. T. 137, 33 C. 773 : 33 I. A. 86 (P. C.) and in Durga Bakhsh Singh v. Muhammad Ali Beg 27 A. 1 : 7 Order C. 287 : 31 I. A. 235 : 8 Sar. P. C. J. 725 (P. C.). In the former else their Lordships say--"the question of undue influence was never properly before the Court at all. No such case was set up in the pleadings.... There was a clear issue as to Khaja Boo having been of unsound mind in 1889, but none with regard to undue influence." After dealing with the evidence, their Lordships observed--"assuming, however, that undue influence might properly be made a ground of decision...the evidence is insufficient to establish anything of the kind." In the latter case, the mortgages in question were sought to be set aside on the ground that the mortgagor was of unsound mind at the time of the execution of the deeds and the evidences given sought to establish insanity of a violent type in his crudest and most palpable form, The evidence was disbelieved. Their Lordships held that it was not allowable for the Court to substitute for the case of insanity a advanced by the plaintiff a case of weakness of mind and consequent helplessness. Similar was the view taken in the case of Sayad Muhammad v. Fatteh Muhammad 22 C. 324 : 22 I. A. 4 : 6 Sar. P. C. J. 515 : 11 Ind. Dec. (n. s.) 218. In the present case us to the plea of undue influence, the learned Subordinate Judge observes: "it is not alleged by the plaintiffs that Moulvi Imdad Hossain was stark mad or a lunatic. The plaintiff No. 1 in his cross examination by the guardian of defendant No. 2 says that Imdad Hossain was neither insane nor mad, The casa of the plaintiffs in the plaint is also similar. Tin sixth paragraph of the plaint, as well as the other paragraphs show that what the plaintiffs complained of is that Moulvi Imdad Hossain was in the last two decides of his life so mentally imbecile and so physically infirm that he was incapable of managing his own affairs or protecting his own interest. In fast, the terms of the plaint are such that it is rather a case of undue influence which the plaintiffs alleged than of insanity."
22. From the afore-aid observation, as well as from the fact that the plea of undue influence and fraud was distinctly raised in Issue No. 3, it is contended that it is open to the plaintiffs to show that the documents in question were affected by undue influence and fraud, although they had raised the plea of insanity in the plaint. The question as to whether the plea could or could not properly be taken, however, becomes immaterial inasmuch as upon the fasts found the plea has not been substantiated.
23. The plaintiffs then attacked the transactions as being benami and as not having been acted upon. There is nothing to show that the transactions were farzi and fictitious in any way, No motive has been suggested for Imdad Hossain to execute these farzi documents. It is not (-aid that he was involved in debts and that he executed there documents in order to protect his properties from being seized by his creditor as is usually the case in farzi transactions. It has also not been shown that he was ill-disposed towards his other sons and that the documents in question were executed in or den to deprive them of their legal shares. No motive has, therefore, been shown for his executing the documents in question farzi in the name of Abdul Aziz or the defendants in the case. No doubt, he acquired some properties between the 2nd of October 1905 and the lath of November 1907 in the farzi name of his sons, Abdul Aziz and Abdul Wahab, (vide Exhibits F and 11). But this is different from transferring his own properties as farzi transactions. Reliance has been placed upon Exhibit 17, dated the 25th of May 1908, an application made by Abdul Aziz for registration and mutation of his name with respect to 10-pies share in Shankerpur Lila based upon Exhibits 3, 5 and 7. The statement relied upon relates only to Exhibit F, dated the 25th September 1907, whereby Imdad Hossain had acquired 1-anna in Shankerpur Harbans and Shankerpur Aiyaama and 1-pie in Shankerpur Lila in the farzi name of Abdul Aziz. The other documents (Exhibits 3 and 5) although referred to in the application have not been declared to be farzi. Therefore, instead of helping the plaintiffs the documents in question are against them, for when Abdul Aziz stated that Exhibit F was farzi, the fast that he does not mention that Exhibits 3, 4 and 5 are also farzi goes to show that the latter were not farzi.
24. The next document relied upon is Exhibit 24, the Tansikhnamah, or the deed of revocation, dated the 18th January 19(sic)3. This document does not declare Exhibits 3, 4 and 5 as farzi but seeks to set aside the exchange of the properties by Exhibits 4 and 5 on the ground that there was breach of covenant, inasmuch as Abdul Aziz had stated that the properties given by him in exchange to Imdad Hossain were free from encumbrance, whereas it was discovered that there was a mortgage on those properties off Rs. 2,000. In this Tansikhnamah, no doubt, the documents Exhibits 6, 7, 8 and 16 were declared to be farzi. The plaintiffs, however, attack this Tansikhnamah, also as being farzi and executed on account of the undue influence exercised by defendants Nos. 6 and 7 over Imdad Hossain and as being null and void on account of Imdad Hossain being insane: vide paragraphs 16 and 17 of the plaint. In the face of the pleadings in the case it is impossible to hold that the documents executed by Imdad Hossain previous to the Tansikhnamah were farzi.
25. It appears that the documents in question were acted upon, inasmuch as the Chalans filed by the defendants show that Mohammad Yakub paid revenue of the three Shankerpurs briefly called Shakri on behalf of Abdul Aziz, The Shakri properties admittedly belonged to Imdad Hossain. Unless these properties came to be held by means of Exhibits 3, 4 and 5, there is no reason why the Government revenue should have been paid by Abdul Aziz, Madarpur Goa, the property which Abdul Aziz gave to Imdad Hossain in exchange under Exhibit 4 in 1907 was in lease with Marhaura Factory per patta executed by Moulvi abdul Aziz, at an annual rental of Rs. (sic),000 or Rs. 1,100. Witness No. 6 for the plaintiff states that Abdul Aziz received the rent of it up to 1911 and after Moulvi Imdad Hossain received the rent till his death in 1915, and after the death of Imdad Hossain his four sons, namely, the two plaintiffs and defendants Nos. 6 and 7 received the rent and that the plaintiffs had mortgaged their share to the Marhaura Estate. This evidence clearly shows that Imdad Hossain same to be in possession of these properties and after his death his four sons received their shares therein by inheritance. The properties belonged to Abdul Aziz and unless the exchange per Exhibit 4 was given effect to, the plaintiffs would not have received any share in those properties. The plaintiffs admit in their plaint (paragraph 20) that they have got their names registered in respect of Madarpur Goa and Chandpura in accordance with the shares that Imdad Hossain got by exchange and which after him they received by inheritance. There is, therefore, nothing to show that the documents ware benami. On the other hand, the learned Subordinate Judge upon the evidence in the case has held that they were acted upon. The deeds of gift in favour of Abdul Aziz and his sons seam to have been acted upon. Therefore, Issues Nos. 7 and 8 were properly decided by the Court below against the plaintiffs.
26. The learned Subordinate Judge also held that the suit was barred by limitation. The plaintiffs' case is that the documents were null and void inasmuch as Imdad Hossain was of unsound mind. They claim their right in the property by inheritance as heirs of Imdad Hossain who is said to have died on the 26th of January 1915. The suit is said to have been instituted on the 15th of July 1915. So, if the documents were null and void on account of insanity of Imdad Hossain, they could not stand in the way of the plaintiff's succeeding to the properties as heirs of their father. The same result would have happened if the documents were held to be benami or fictitious. The plaintiffs need not in that case have the documents set aside, and the suit would not be barred by limitation, in accordance with the principle enunciated in the case of Bijoy Gopal Mukerji v. Krishna Mahishi Debi 34 C. 329 11 C. W. N. 424 : 5 C. L. J. 334 : 9 Bom. L. Rule 602 : 2 M. L. T. 133 : 11 M. L. J. 154: 4 A. L. J. 329 : 34 I. A. 87 (P. C.).
27. It is, however, urged that the suit of the plaintiffs is barred by the rule of three years' limitation under Article 91 of the Limitation Act in so far as the deeds are impugned on the ground of undue influence or fraud. The question becomes only of an academic interest in view of our findings on the merits of the case and does not all for any serious consideration.
28. Agreeing with the view taken by the Court below we dismiss the appeal with costs.
Adami, J.
29. I agree.