Patna High Court
Amir Alam vs Mt. Bibi Salma And Anr. on 15 May, 1951
Equivalent citations: AIR1952PAT19, AIR 1952 PATNA 19
JUDGMENT Reuben, J.
1. This appeal by the defendant is directed against a decree of the subordinate Judge, Patna, declaring certain documents in operative and granting consequential relief.
2. The impugned documents purport to have been executed by one Mt. Bibi Ayesha in favour of the defendant-appellant. The defendant-appellant Amir Alam is the son of Ayesha's brother Akram. Plaintiff No. 1 Salma is the sister of Ayesha. Plaintiff no. 2 Afzal is the son of Ali Aslam, another brother of Ayesha. Ayesha died in September, 1943, leaving these three persons as her only heirs. The defendant became an orphan when he was aged about four years and was taken charge of by Ayesha, who had no children of her own. Ayesha's husband died about the year 1928 and since then the defendant has lived with her and has looked after her affairs. The impugned documents were executed by her when she was about sixty years of age and by then she parted with all her immovable property. Two of the documents are deeds of Hipa-bil-ewaz for a nominal consideration. The third is a sale-deed the consideration for which is stated to be Rs. 5,000/-. The case of the plaintiff is that Ayesha was induced to execute these deeds through fraud and undue influence, that she had no independent advice and did not understand what she was doing, that at best the documents represent fictitious transactions and no consideration passed. Also it was suggested that the documents are forged. The defence taken was that the documents are genuine, executed in due course and for consideration, and that the executant knew what she was doing and intended them to be effective documents.
3. There does not appear to have been serious attempt before the Subordinate Judge to establish the plea of forgery and the Subordinate Judge has not come to any clear finding thereon. In consideration of the relationship between the defendant and Mt. Ayesha, the Subordinate Judge placed on the defendant the onus of proof and formulated It to be to satisfy the Court." "First that the deed was actually executed by her or by some person duly authorised by her with a full understanding of what she was about to do; secondly, that she had full knowledge of the nature and effect of the transaction into which she is said to have entered and thirdly, that she had independent and disinterested advice in the matter."
On a consideration of the evidence he came to the conclusion that the defendant has failed to prove that the documents were executed by Ayesha with a knowledge and understanding of their contents. He also held that the consideration alleged had not passed and that effect was not given to the documents.
4. Ayesha was a widow aged about sixty years when she executed the documents in question. She was admittedly a 'purdanashin' woman and was living alone with the defendant, who has been looking after her property for a very long time. The defendant is the sole beneficiary under the impugned" documents and by these documents Ayesha purports to strip herself of all her immovable property. In these circumstances, Counsel for the appellant concedes that the onus was heavy on the appellant to prove intelligent execution by Ayesha. He contends that on the evidence adduced the Subordinate Judge should have held this onus to have been discharged. He urges that the Subordinate Judge misdirected himself by regarding independent advice as essential and that, once the defendant succeeds in proving that Ayesha understood the nature of the documents which she was executing, the onus lies on the plaintiffs to prove that the documents represent fictitious and not real transactions. In view of these contentions, the arguments before us have been confined to the evidence adduced by the defendant.
5. In 'Kali Bakhsh Singh v. Ram Gopai Singh', 41 Ind App 23 Lord Shaw of Dunfermline observed: "The possession of independent advice or the absence of it, is a fact to be taken into consideration and well weighed on a review of the whole circumstances relevant to the issue of whether the grantor thoroughly comprehended, and deliberately and of her own free will carried out, the transaction."
In that case evidence as to the executant's strength of will and business capacity and that the lady thoroughly understood this form of transaction and the fact that the disposition of her property was not an unnatural one were taken along with the other evidence and circumstances to prove due execution. Although the Subordinate Judge in stating the burden of proof at the commencement of his judgment emphasised the necessity of independent advice, he was not unaware of the correct view, for his attention was drawn to this decision of the Judicial Committee, and, treating the absence of independent evidence as a fact to be weighed along with the other evidence, he came to the conclusion that there was "no satisfactory evidence on the defendant's side to show that Bibi Ayesha executed the documents in question of her own free will after knowing and thoroughly understanding the transactions."
6. The extent of the onus of proof in such cases is well defined by Lord Sumner in 'Farid-un-nisa v. Mukhtar Ahmad', 52 Ind App, 342 at p. 350: "The case of an illiterate pardanashin lady, denuding herself of a large proportion of her property without professional or independent advice, is one on which there is much authority. Independent legal advice is not in itself essential: 'Kali Buksh Singh's case', 41 Ind App 23. After all, advice, if given, might have been bad advice, or the settlor might have insisted on disregarding it. The real point is, that the disposition made must be substantially under-
stood and must really be the mental act, as its execution is the physical act, of the person who makes it: 'Wajid Khan v. Ewaz Ali Khan', 18 Ind App 144; 'Sunitabala Debi v. Dharasundari Debi', 46 Ind App 272. The appellant clearly had no such advice, nor it is contended that the had. If, however, the settlor's freedom and comprehension can be otherwise established, or if, as is the respondents' case here, the scheme and substance of the deed were themselves originally and clearly conceived and desired by the settlor, and were then substantially embodied in the deed, there would be nothing further to be gained, by independent advice. If the settlor really understands and means to make the transfer, it is not required that some one should have tried to persuade her to the contrary. Again, the question arises how the state of the settlor's mind is to be proved. That the parties to prove it are the parties who set up and rely on the deed is clear. They must satisfy the Court that the deed has been explained to and understood by the party thus under disability, either before execution, or after it under circumstances which establish adoption of it with full knowledge and comprehension: 'Sudisht Lal v. Mt. Sheobarat Koer', 8 Ind App 39; 'Shambati Koeri v. Jagobibi', 29 Ind App 127; 'Sajjad Hussain v. Amid Hussain', 39 Ind App 156."
What the party claiming under such a deed has to establish is that the executant really understood the deed and intended to execute it as such 'Sikandar Begam v. Zulfikar Wali Khan', AIR (25) 1938 P C 38; that the execution is not merely a physical act but that the executant's mind went with it and she intended to give effect to the transaction represented by the deed.
7. It has been contended before us that it is sufficient that the party claiming under the deed proves intelligent execution, that is to say, that the executant knew the nature of the deed which she was executing, whether this will be sufficient or not depends on the circumstances of each particular case. Ordinarily where there is no special connection between the 'pardanashin' lady on one side and the beneficiary under the deed or the persons concerned in bringing about the execution of the deed, it may be sufficient to prove that the lady knew the nature of the document she was executing. The inference would, however, not follow so readily where there is relationship of a fiduciary character and the Court must be satisfied that the executant understood the effect of the transaction into which she was entering and really intended it. A case in point is 'Inche Noriah v. Shaik Allie', AIR (16) 1929 P C 3, in which the Judicial Committee followed the rule in 'Allcard v. Skinner', (1887) 36 Ch D 145 where the relations between the parties at the time of the transaction were such as to raise a presumption that the donee had influence over the donor, the Court must be satisfied that the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will. In the! case before their Lordships there was proof of independent advice given by a lawyer who deposed that he prepared the deed of gift on instructions, received from the lady herself and that he explained it to her before its execution, telling her that it was irrevocable and gave the property absolutely to the donee. Their Lordships, while not doubting the good faith of the lawyer, did not consider his advice sufficient to rebut the presumption as, 'inter alia', he has not made aware that the property which was being given away constituted practically the whole estate of the donor, and he did not seem to have brought home to the donor's mind the consequences to herself of what she was doing. Thus, it is not sufficient that the executant knows the nature of the document, she must also realise what its effect on her will be.
8. The first impugned document (Exhibit A) is dated the 19th September, 1938. It is a Hiba-bil-ewaz deed purporting to transfer to the defendant a house in Dariapur Sher of Patna town which is valued in the deed at Rs. 2,000/-. The motive for the deed is stated to be the executant's affection for the appellant whom she has maintained from his childhood and her anxiety that he should have residence of his own. There are two remarkable features about this document. The first is the number of times in which it is mentioned, that the document has been read out and explained to Ayesha. Ayesha herself makes the statement three times, in the body of the document, in her endorsement of execution and in an endorsement said to have been made by her before the Sub-Registrar at the time of registration. In the nature of things, a bare statement of this sort has little value for the present purpose, as it begs the very question which is to be investigated. There must be proof that she had the capacity to understand it, or of something done or said by her which shows that she understood it. Then there is a note to this effect by the scribe. This is a feature which the document has in common with the other two impugned documents. None of the scribes has been examined as a witness and the Court is not in a position to assess the value to be attached to this explanation. Finally, there is an endorsement by Syed Muhammad (D.W. 4), whose evidence I shall discuss presently. Evidently, somebody, connected, with the execution of this document realised that it was important that Ayesha should know, or at least should appear to have known, what she was doing. It is significant in these circumstances that no near relative of Ayesha other than the defendant himself was present. The only relatives present are said to have been Anwarul Haque (D.W. 3) and one Abdus Salarn, both attesting witnesses, who have been found by the Subordinate Judge to be at most distant relatives of Ayesha and nearly related to the defendant. The second peculiar feature is that though there were as many as five attesting witnesses, they all attested on "the admission of the executant." Apparently, in spite of the alleged relationship Mt. Ayesha did not appear before any of the attesting witnesses. The second document is another Hiba-bil-ewaz., exhibit A (1), dated the 11th October, 1939, by which Ayesha purported to part with milkiat property in Semhari and Kohbara villages assessed to a total revenue of about Rs. 700/- per year together with eight kathas of Brahmotter land in village Kohbara, The approximate value of this property is stated to be Rs. 2,000/- but this would appear to be a palpable understatement, an opinion which is confirmed by the third impugned document, which relates to the remaining milkiat interest of Ayesha in village Kohbara. The motive of the deed is again stated to be the affection which Ayesha bears to the defendant and her desire "to make such an arrangement so that he might live in full comfort." The defendant recites that it has been executed after obtaining "independent and legal advice" but no attempt has been made to show that she was advised by any independent person. The sale-deed, Exhibit B, is dated the 12th January 1943, and relates to milkiat property in Kohbara assessed to Government revenue of about Rs. 67/-. The consideration is stated to be Rs. 5,000/- partly adjusted in satisfaction of a loan of Rs. 3,925/-given by the defendant to Ayesha, partly left with the vendee for paying Government dues and partly left in cash before the Sub-Registrar, it may be accepted that the cash actually changed hands in the presence of the Sub-Registrar but it does not follow that this represents a real payment, for Ayesha was then behind the 'purdah'. By that time Ayesha is said to have lost the use of her eyes and the sale-deed purports to have been signed on her behalf by Mukhtar Ahmad (D. W. 2), who is also an attesting witness. There are as many as ten other attesting witnesses. Evidently the importance of making it appear that every thing was regular in the execution of this document was realised, but again no near relative was present other than the defendant. The Subordinate Judge has held that there was no passing of consideration and that Ayesha was not in need of money. This finding is based on substantial evidence and its correctness has not been challenged before us.
9. In proof of the due execution of these three deeds, three witnesses have been examined. Anwarul Haque (D.W. 3) is a probationary Munsif-Magistrate in the State of Hyderabad and much stress has been laid upon him as a respectable and reliable witness. He figures as an attesting witness to both the documents of Hiba-bil-ewaz and it is he who identified Ayesha before the Sub-Registrar when the Second Hiba-bil-ewaz was registered. At the time when these two deeds were executed, the witness happened to be in Patna because he was a student in the local Law College. His home is in the Hyderabad State and his relationship with Ayesha is at most a distant one of which he was unable to give any particulars. The witness states that when the Sub-Registrar was registering the second document, he, the witness, read and explained the 'hibanama' to Ayesha and there is an endorsement to this effect on the document. Mokhtar Ahrnad (D.W. 2), an attesting witness to the impugned sale-deed, was also a student when he attested the document. He too is at best very distantly connected with Bibi Ayesha. By that time Bibi Ayesha must have been in helpless state having lost the use of her eyes. Yet, here again, we find no near relative present and before the Sub-Registrar it is this student who identified Ayesha and who is said to have read and explained the document to her. More weight would, at the first sight, appear to attach to the evidence of Syed Muhammad (D.W. 4) an elderly lawyer practising at Patna. He is an attesting witness to the sale-deed and the second Hiba-bil-ewaz and is said to have identified Ayesha at the time of the registration of the first Hiba-bil-ewaz and to have read and explained the document to her. Unfortunately the weight of this gentleman's evidence is affected by a peculiar circumstance appearing in connection with the registration of the first Hiba-bil-ewaz. There are two endorsements on this document purporting to have been made in the presence of the Sub-Registrar by the lady whom he identified as the executant. Exhibit I (4) : "I got the contents of this deed read over and explained to me."
Exhibit I (5) :
'I received one bound volume of Quaran Sharif and one gold ring in presence of the Sub-Registrar." The writing in which these two endorsements appear is markedly different both in firmness and in style from the endorsements of execution said to have been made by Ayesha on the, two deeds of Hiba-bil-ewaz and the Subordinate Judge rightly expressed a doubt as to whether there endorsements were written by the same person who made the endorsement of execution.
10. As regards Ayesha's capacity to understand the nature and effect of the documents which she was executing, there is only general evidence. We know that she was literate to the extent of being able to sign her name and to make the necessary endorsements of execution and the like. Anwarul Hague (D. W. 3) and Syed Muhammad (D. W. 4) say that she was intelligent and understood business, but neither of them speaks of having actually seen her transacting business. The former deposes that he never had any connection with the management of her property and has never had any transaction with her. The latter admitted in cross-examination that he had no occasion to judge of her capacity to understand business. Reference has been made before us to the statement of Sheocharan Iml (P. W. 4) that Ayetha used to dictate letters. But even illiterate persons, who have no special capacity for understanding business, are quite capable of dictating letters. Stress has also been laid on a statement of Afzal (plaintiff No. 2), who was examined as F. W. 8, as showing a knowledge of the nature of these transactions. The witness made two contradictory statements. The one relied on is;
"It is Bibi Ayesha who told me that the two hibanamas and the kebala in suit bad been executed by her as farzi documents and she also toll me why she had executed these documents as farzi documents."
Accepting this statement for what it is worth, it does not help the defendant. The statement must have been made after the documents had been executed, whereas we are concerned with her knowledge and her intention at the time of the execution of these documents. Further, the statement shows, at most, a knowledge of the nature of the documents. It does not show that she was aware of the extent of the property covered by the documents and how her own position was likely to be affected by those documents. Also the statement does not show an intention on her part to execute those documents as genuine and effective documents. The case of the plaintiffs as regards the motive for the execution of farzi, that is to say, fictitious, documents of transfer, is that Ayesha was given to understand that the documents were necessary for the purpose of litigation with one Ramratan Babu, Mukhtar; the first Hiba as evidence of possession, the second Hibain order to make herself out to be a pauper and the sale-dead to avoid the realisation of court-fee. We know that there was such a suit brought by Mt. Ayesha as a pauper and that the suit ultimately ended in a compromise. The suggestion as to the fictitious nature of these document is, therefore, not without any basis. The evidence relied upon does not, in my opinion, prove that Ayesha, knowingly executed these documents intending that they could be operative deeds.
11. My inference is supported by the circumstances accompanying the reading and the explaining of the documents to Ayesha. On none of these occasions was any near relation of Ayesha present with the exception of the defendant alone. On these occasions the reading and explaining was done by the scribes of the particular documents--persons who have not been examined as witnesses and therefore persons whose acquaintance with the affairs of Mt. Ayesha and whose capacity to make Ayesha understand the purport and the effect of the documents in question, the Court is unable to judge. It is not usual to sole at scribes with particular regard to their intelligence and their conscientiousness. Ordinarily, any person who has acquired a certain amount of facility in drawing up formal documents and who happens to be available at the time when the occasion for drawing up such a document arises, is engaged for the purpose. On two other occasions the reading and the explaining was done by mere students. On the only occasion the reading and the explaining was done by a peraon of such a standing that it might be premised that he was capable of advising the executant as well as of explaining the document. It is doubtful whether the person to whom the explaining was made was really Mt. Ayesha. Another circumstance consistent with the suggestion of farzi is the statement of Aklu Dhobi (D. w. 8), a tenant in the house in Dariapur, that upto the date of Ayesha's death he was paying the rent to Ayesha. Had Ayesha really intended the first Hiba executed by her to be an effective document and had she really intended, out of affection for the defendant, to transfer the house to the defendant, she would have told the witness that the house no longer belonged to her and that the rent was due not to her but to the defendant. Some papers were adduced in evidence to show that the defendant got his name mutated in respect of the property covered by the impugned deeds. As the defendant was looking after Mt. Ayesha's property, not much weight attaches to these papers and they have not been referred to before us. Nor has any reference been made to the account papers of the defendant himself which were rejected by the Subordinate Judge as unreliable.
12. In the circumstances, which I have set out above, it appears to me that the physical act of Ayesha in executing the documents and her acknowledgment of execution before the Sub-Registrar at the time of registration is no proof that the mental element necessary for valid execution was present. Nor is it of any avail that, after Alzal spoke to her, Ayesha took no steps to disclaim the three transactions.
13. For these reasons I agree with the Subordinate Judge that the defendant has failed to prove intelligent execution of the impugned documents and an intention to execute them as effective documents. Therefore, the appeal fails and I would dismiss it with costs.
Lakshmikanta Jha, C.J.
14. I agree.