Patna High Court
Babu Baijnath Singh And Ors. vs Musammat Brijraj Kuer And Ors. on 7 July, 1922
Equivalent citations: 68IND. CAS.383, AIR 1922 PATNA 514
JUDGMENT Dawson Miller, C.J.
1. This is an appeal by some of the defendants from a degree of the Officiating Subordinate Judge of Shababad pronouncing in favour of the plaintiffs' title under a deed dated the 14th Marsh 1917 executed by their mother Musammat Bhagela Kuer, conveying a half share in her property to the plaintiffs and decliring an earlier gift by Bhagela Kuer under an instrument dated the 7th January 1,08, conveying the bulk of her property to her grandsons, null and void.
2. The plaintiffs, who are the respondents in this appeal, are the two younger daughters of the late Babu Raghunath Charan Singh and his widow Bhagela Kuer. The principal defendants in the suit are Musammat Dharam-raj Kuer and Musammat Chhabi Raj Kuer (defendants Nos. 1 and 2) who are sisters of the plaintiffs, Mahadeo Singh, Inderdeo Singh and Tilakdhari Singh (defendants Nos. 3 to 5) who are sons of Dharamraj Kuer, and Baijnath Singh, (defendant No. 10.) the husband of Dharamraj and Chhabi Raj.
3. The defendants Nos. 6 to 9 are other sons of Bajinath Singh. The defendant No. 11, Musammat Kowla Kuer, is the sister-in-law of the plaintiffs and the first two defendants, being the widow of their deceased brother, Bachu Singh. The defendants Nos. 12 to 18 are transferees of some of the property in suit from the defendants Nos. 3 to 5 and the defendant No. 19 Musammat Bhagela Kuer is the mother of the plaintiffs and the first two defendants.
4. The plaintiffs do not deny that the earlier gift of 1908 was executed by their mother, Bhagela Kuer, but contend that she signed the same under the impression that it was a gift of her property in favour of her four daughters in equal sharer, and that her signature was obtained by the fraud of Baij Nath Singh, the husband of their sister Dharamraj, who falsely represented that the document was a gift in favour of her four daughters in equal shares in accordance with her expressed intention, whereas in fact it was a gift of the balk of the property to the three sons of Baijnath Singh and Dharamraj, his wife, a small portion only being conveyed to the other three daughters and to the daughter-in-law, Kowla Kuer. They claim that the gift of January 1908 be declared void and inoperative and that they may be given possession over a half share of the property in accordance with the instrument of the 14th March 1917.
5. The appellants deny the alleged fraud and contend that the instrument of 1908 in fact carried out the expressed wishes of their mother and was read over to and understood by her before execution. They further contend that in any case the gift of 1908 was not void, even if it did net express the intentions of the donor, but voidable only, and that the plaintiffs cannot maintain an action on the later deed until the earlier one is a set aside, and as the donor, Bhagela Kuer, was not a pLalntiff and had not sued to have it set aside, the suit should be dismissed. They have raised a further point in this appeal which does not appear to have been specifically raised before the Trial Court, namely, that the instrument of the 14th March 1917, relied on by the plaintiffs, was a gift, requiring attestation by two witnesses, and 4s not admissible in evidence as none of the alleged attesting witnesses had been nailed to prove it as required by Section 68 of the Evidence Act, and further that even if admitted as evidence the document itself did not purport to be and was not properly attested. They further raised a question of estoppel.
6. The learned Officiating Subordinate Judge before whom the case came for trial held that, if the facts alleged in the plaint were proved, the gift of 1908 would be void ab initio and that it would not be nesessary in such circumstances to have it set aside before the plaintiffs could assert; their title under the later instrument. He farther found that the signature of Bhagela Kuer was obtained by the fraud of her son in-law, Baijnath Singh, and did not express her intentions and that she never consented thereto. He further found that Musammat Bhagela Kuer between 1908 and 1917 had no knowledge of the real contents of the earlier document, and that no circumstances had been made out whish would operate as a bar to the suit by way of estoppe(sic) arising from the conduct of Bhagela Kuer. He accordingly found in favour of the plaintiffs and awarded them possession of a half share in the property under the deed of 1917 together with mesne profits subject to certain maintenance charges and subject to a conveyance of Mouza Ghanti to the defendants Nos. 12 to 18 under a, deed of sale dated the 28th March 1914 which was found to be for legal necessity.
7. From this decision Baijnath Singh, his wife Dharamraj, his sons Iderdeo and Tilakdhari and his grandson Rajeswar Prasad, the son of the defendant Mahadeo Singh, deceased, have appealed.
8. Babu Raghunath Charan Singh, the husband of Musammat Bhagela Kuer, died in the mouth of July 1907 leaving property in same 20 villages the income from which is alleged to about Rs. 8,000 per annum. He also left debts amounting to over Rs. 30,000. His only son Bachu Singh had died some 18 months before his father but in addition to his widow he left surviving him the four daughters already referred to. Raghunath Charan Singh was greatly afflicted and suffered much mental distress by the death of his only son and there an be no doubt that his death was hastened, if not directly due to his bereavement. His widow says that it was the cause of his death. The deceased son left a widow Musammat Kowla Kuer who has bean added as one of the defendants in the suit. Bhagela Kuer, as next heir to her husband, suceeded to his property taking a Hindu widow's estate. The eldest daughter, Dharamraj, was at the time of her father's death the only married daughter, her husband being Baij nath Singh, the defendant No. 10. She and Baijnath had at that time three sons Mahadeo Singh deceased, Inderdeo and Tilakdhari, but other sons wore born to them before the institution of this suit and were made defendants. On the death of Raghunath Charan Singh, Baijnath Singh with his wife and three children left their home in the United Provinces and went to live with the widow Bhagela Kuer at Barauna, and at her request, Baijnath took over the management of the estate and transacted all business on her behalf, she being a pardanashin lady. Before this, however, it appears that Dharam raj did from time to time after her brother Bachu's death live with her children in her father's house at Barauna and her third son Tilakhdari was born there in 1907 during her father's lifetime.
9. It is the appellants case that Raghunath Singh had a great affection for his grandsons and after his sons's death freguently expressed a desire to make over his property to them after making some provision by way of maintenance for his three younger daughters and his daughter-in-law. He was anxious that his debts should be discharged before his death but was not in a fit condition to attend to business and the grandsons 'were to be discharged with the liquidation of his debts out of the estate in their hands, and thus he would be relieved from the burden of debt which unless discharged would militate against his happiness in the next world. It is also suggested that Raghunath was not on goad terms with his gotias and was afraid that they might andeavour to obtain the property and involve the estate in litigation after his death if no settlement was made, which was another reason for wishing his property to be Settled upon his male descendants. Raghunath himself had made this suggestion to Baijnath about three months after his son's death and had sent his nephew Bhuneshwar Singh to take him and his family to Barauna. His wife and his two sons did in fast go to Barauna at that time and the third son Tilakdhari was, as stated, born there. Baijnath himself went there three or four months later, Raghunath made no secret of his desire that the property should begiven to the three grandsons and according to the appellants he named the Mouzas to be given to each daughter for their maintenance and expressed a desire also that something should be given to the daughter in law but no document was executed in his lifetime. In January 1908, about six months after Raghunath's death, a draft deed was prepared by a Pleader named Narsingh Sahai who went to Barauna to take instructions from the widow for that purpose. According to the appellants; both the draft and the fair copy prepared by the scribe, Shyam Charan Lal, were read over and explained to Bhagela Kuer who approved them and the document was executed in the presence of four attesting witnesses on the 7th January 1908. The document recites that, the, disposition made therein was in accordance with the wishes of the donor's deceased husband who, daring his lifetime, had expressed a wish that property yielding an annual income of Rs. 300 should be given to his daughter in law, Musammat Kowla Kuer, for her maintenanca during her life, and that property yielding an annual income of Rs. 600 should be given to each of his three unmarried daughters and the remainder to his three grandsons Mahadeo, Inderdeo and Tilakdhari and adds that as my husband Babu Raghunath Charan Singh died without executing any deed in the above terms as desired by him, he at the time of his death instructed me to execute a deed in the terms desired by him." It further recites that the donor is confident that her said grandsons and daughters will properly serve and maintain her and remain obedient to her during her lifetime and at her death well perform her funeral ceremony in a fitting manner. It then gives a life interest in Mouza Ismailpore, Kalan II, to her daughter in law, Musammat Kowla Kuer, and to her daughter Chhabiraj a life interest in Mouza Parbatpur with remainder to her sons and grandson?, if any, to her daughter Brij Raj a similar interest in Mouza Ismailpore, Kalan I, and to her daughter Girj Raj a similar interest in Mouzas Kota and Jagdispore(sic) The balance of the estate is given to her eldest daughter Dharamraj and her three sons Mahadeo, Inderdeo and Tilakdhari Singh. The grandsons are charged with the obligation to pay up immediately all debts which are at present standing or which would be contracted hereafter, by sale or by any other transaction or by any other possible means so that the whole of the estate left by her husband may after liquidation of the debts remain free and unencumbered. They are also charged with the expenses connected with the marriages of the three younger daughters which are to be paid out of the income of all the elaqas. They are further charged with the maintenance of the widow and the expanses of her funeral ceremony and the performance of the Gay a Saradh of her husband in a tilting manner. They are further charged with the completion of a temple which her husband had begun to build at Barauna and with the installation of the image of the daily Sri Sri Sheoji Maharaj and the performance of the puja ets., Bhagela' Kuer was illiterate but at her request her name was written by an old servant of the family, Pradhan Ajodhya Prasad, since deceased. It is witnessed by four witnesses, three of whom were called at he trial and is certified by the scribe who was also called as a witness, to have been read out and explained to the executant. It was registered at the residence of Bhagela Kuer on the 12th January in the presence of the Sub Registrar before the executant who admitted execution and who was identified by her nephew Bhuneshwar Singh, her sister's son. On that occasion her signature was also made by the pen of Ajodhya Prasad and Bhagela Kuar made her thumb impression on the document. On the 26th January an application was made to enter the names of the doness in Register D in the Land Registration Department. An objection was filed by one Rjinder Narain Singh, a gotia of Raghunath Charan Singh, on the 12th March 1903 claiming that he had been adopted by the deceased in January 1907 after the death of his only son and was entitled to have his name ragistered as the owner of the property. Witnesses ware called bath on behalf of the applicants and on behalf of the objector in these proceedings. On that occasion the deed of gift was pat in evidence and proved by two of the atce(sic)sing witnesses and by Ajodhya Prasad and the execution of the deed was in fact admitted by the objector. Hid claim to have beenadopted by Raghunath Charan Singh was not supported by any credible evidence and his objection was dismissed and the petitioners' names were entered in the Register. In August 1908 Musammat Bhagela Kuer executed a mukhtarnama constiuting Baijnath Singh her general agent. This document recites the gift previously made in January that year to her gradsons and daughters. In September 1910 upon a petition to the District Judge of Arrah Musammat Bhagela Kuer was appointed guardian of her three grandsons Mahadeo, Inderdeo and Tilakdhari, and the properties is the possession of the minors under the deed of gift are therein referred to and set out in detail in the Schedule, In March 1913 Mauza Ghanti Bargawan one of the properties transferred to the grandson) under the deed of gift, was sold for a sum of Rs. 17,000 in order to pay off certain existing debts. This document was executed by Bhagala Kuer as guardian of her three minor grandsons, aha having previously obtained sanation from the District Judge of Arrah to sell the property. la May 1915 the District Judge, not being satisfied with the manner in which the. property was being managed by the guardian, denuted Mr. H. T. Christian, the Sub-Divisional Officer of Bhabua, to proceed to Barauna and make enquiries and report as to the appointment of another guardian of the minors' properties. Mr. Christian, who has bean Balled as a witness on bebalf of the appellants, proceedad to Barauna, his institutions being to enquire into the accounts and to recommend a manager in consultation with Bhagela Kuer, Ha had an interview with that lady and also with Brijnath Singh. He discussed with Bhagela Kuer the question of appointing a manager of the minors' property and she expressed a desire to have Baijnath Singh appointed manager adding " Yih log ka chiz hai" from which I think it may reasonably be inferred if this evidence is accepted, and I see no reason for rejecting it, that Bhagela Kuer at that time considered the property as belonging to Brijnath's family. Mr. Christian made a report that the income of the estate was about Rs. 4,300 a year exclusive of the rents of villages already assigned to debtors under usafructuary mortgages and made certain suggessions as to redusing expenses and providing for paying off the debts. He states that the late guardian Bhagela Kuer had given a very low estimate of the income from the lands and it see ns obvious from this that she mutt have discussed the income of the properly of her grandsons of whom she was the guardian.
10. It is quite obvious from the facts which I have just stated that if Baijnath Singh wilfully deceived his mother in-law into making a gift of her property to the grandsons be, at all events, took no measures to conceal the fact. Everything was done openly, the document was registered, servants and members of the family were parties to it including the nephew of Bhagela Kuer. She herself was also appointed guardian of the minor grand-children, and When some of the property was sold to pay off the debts, it was she who had to execute the conveyance in which a recital of the gift appears. It is not disputed by Bhagela Kuer that she executed the documents that she contends that she was entirely ignorant of the contents of any of them. The names of the grandsons were alto entered in the register in the Land Registration Department, a fast whith could not wall be concealed from the gotias and the other members of her family, and indeed this registration was objected to by Rajinder Narain Singh who claimed to have been adopted by Bhagela Kuar's deceased husband and preferred his Claim in open Court. When a Hindu landowner dies without mala issue and his widow makes a disposition of the property followed by a mutation of names in the Land Registration Department the fact very soon becomes known to the gotias and other kinsman of the deceased, as in fast happened in the present case and it would appear that if Bhagela Kuer's evidence is true she alone of all her kinsmen and servants was ignorant of the real nature of the transaction. The learned Subordinate Judge, however, has come to the conclusion that a fraud was perpetrated upon her and that she was not aware, until many yearn afterwards, in 1917 of the contents of the instrument executed by her in 1908 aid it will be necessary to consider his "reasons for arriving at this conclusion. Before doing so, however, it would be convenient to state how it was that Bhagela Kuer same to make a different disposition of her property in the, year 1917, In 1913 Baijnath Singh took as his second wife Chhabi Raj, the sister of his first wife. The two younger girls were at that time unmarried but in 1916 they were married, to two brother?, the sons of Babu Raghuraj Singh residing at Narkhoria not far from Barauna where Bhagela Kuer lived. One would expert that before the marriage of his sons Raghuraj Singh would make enquiries as to the prop arty or prospects of his future daughters-in law whose father had died without male issue. Nothing of the sort, however, according to Raghuraj's evidence, appears to have been done, and the marriage of his sons took place in July 1916. The negotiations for the marriage took two or three months before completion and he says that his elder brother conducted the negotiations on his behalf and be knew notoing about them. He further says that ho know no details about the property and its management and did not even know that Musammat Bhagela Kuer had any properties. In February or March 1917 ha went on a visit to Bhagela Kuer at her house and was informed by that lady that half the property belonged to her two younger daughters and the other half to the wives of Baijnath. He then asked Baijnath, under whose; management the estate was, to partition the properties and explain the accounts, but, he refused to do so. Bhagela Kuer also, asked him to divide the properties, but upon his refusal a copy of the hibanama of 1908 was sent for, whereupon the Musammat learnt for the first time that the major if, portion had been given to the sons of? Baijnath, She thereupon sent for a Pleader and; executed the bainama transferring one behalf of her property to her younger daughters Brij Raj and Girj Raj, This document is dated the 14th Marah 1917 and is the foundation of the plaintiffs' title in this suit. It purports to sell and convey the half of the entire estate of her deceased husband in which she has a life-interest and which is said to be worth Rs. 12,000 to her daughters Brij Raj Kuar and Girj Raj Kuer as well as the right of instituting a suit for the cancellation of the previous gift. It then states whereas in consideration of service and of obedience of the aforesaid daughters as well as in view of their being the reversioner. I gave up and remitted the consideration of it, and made them owners in my plase and pat them in possession of the, vended property". It is signed by Musammat Bhagela Kuer by the pen of Babu Rampati Singh and purports to be attested by four witnesses on admission by the executant. it was registered on the 19th March 1917.
11. The case for the plaintiffs (respondents) rests mainly upon the evidence of Raghuraj Singh, the father in-law of the plaintiffs, and Bhagela Kuer, their mother, and I may say at once that the evidence on both sides is unsatisfactory and open to serious criticism. I have already referred shortly to the evidence of Raghuraj Singh and have pointed out how he professed to be completely ignorant as to the prospects of his daugnters-in-law before their marriage. He admits, however, that before he went to see Bhagela Kuer after their marriage, that lady had told him that she had made a gift of the property and he states that he did not ask her anything about possession of it. Ha says he came to know after the bainama in favour of his daughters-in-law was executed that the village Ghanti already referred to as having been sold to pay off some of the debts, had been disposed of, but he did not enquire from anybody who was in possession of it before filing the plaint which was verified by himself. The plaint nevertheless impleads as defendants the purchasers of that village. Moreover, after obtaining a copy of the deed of gift, of 1908, he says that although he saw the names of the attesting witnesses thereon, ha never made any enquiries from them or anybody else as to its execution, nor did he endeavour, as one might expect he would, to verifiy the story of Bhagela Kuer from those parsons. He was asked in eross examination as to the witnesses to the dominant if 1917 relied on by him, and on being asked whether they had some to give evidence replied that they had not. Bhagela Kuer in her evidence states that her husband did not say anything to her during his lifetime in connection with the disposal of the property. After his death she wanted to give it to all her four daughters and asked Baijnath Singh to get a document prepared. She did not express her desire to anybody else. She states she did not have the document read out to her. She does not in terms say that Baijnath Singh or anybody else ever represented to her what was in the document or that it carried out her wishes, bat signed it without having it read out, and, apparenly, without making any enquires. She denies all knowledge of Pradhan Ajodhya Prasad who wrote her name for her on the document or of the witnesses who signed it although it appears to be clear from the evidence of other witnesses that they were servants or members of her household. She says she does not recollect if the Sub-Registrar questioned her as to whether she had got the hibanama read out to her but she put her thumb impression on it, She admits that Bhunesh war Singh, her nephew, who identified her was present on the occasion, and, although ha lived in her house until his death in 1914, she never asked him or apparently any-body else as to what was written in the document. She further says that she does riot know she was appointed guardian of her minor grandchildren by the District Judge and that Mr. Christian, the Sub-Dvisional Officer, never earns to her house or asked her anything in connection with the management of the estate. It is impossible to accept thin last statement in the face of Mr. Christain's evidence and his report to the District Judge after his visit. She further pays that she does not recollect whether the Pleader Narsingh Sahai same to her house in connection with the drafting of the document. After some pressing she admitted that, she knew about the sale of Mouza Ghanti. There are so many improbabilities in the story of these two witnesses that I cannot but feel great hesitation in accepting the truth of their story. The evidence of the appellant's witnesses, however, is also in many respects open to serious criticism. One reason assigned for questioning the benafides of Baijnath Singh is that in the management of the property be seems to have neglected the interests of the plaintiffs and given preference to those of his wives and children. Although the Mouzas transferred to the plaintiffs under the deed of gift were entered in their names, and suits, when necessary, were instituted in their names, no separate accounts were kept and some of the proceeds of the property sold were used in paying off the charge upon Parbatpur, the property of Obhabi Rai, whilst, that of the plaintiffs was hit ensumbered. It also appears that in the Hat of debts due from the estate entered in the Schedule, when the certificate of guardianship was applied for in 1910 there is an item cf Rs. 1,600 due to Rajdari Singh, one of the younger sons of Baijnath. This is said to be due under an unregistered hand-note dated the 22nd March 1906. Baij-nath explains this by saying that it was a debt due to his wife, Dharamraj, but stood in the name of his son who could scarcely have been a year old in 1310 and was not born in 1906. It is difficult, however, to believe that Raghunath Charan Singh in 19C6 would borrow money from his daughter, Dharamraj, on a hand-note. It is just possible that the money borrowed was really that of Baijnath, heir husband, and that the transaction took place in her name. Unfortunately, however, the matter was not further enquired into in cross examination and, although it may be capable of explanation, it is a matter of some suspicion. It also appears that the properties given to the plaintiffs under the hibanama were mortgaged before the document was executed and a further sum of Rs. 700 was subsequently raised under a zarpeshgi of Mouza Jagdishpur belonging to Brij Raj, the money being used to pay the costs of survey not only of that village but of other villages awarded by the deed of gift to the appellants. I think it may fairly be assumed that the whole of the property was dealt with by Baijnath indiscriminately as if the parties were a joint family and not entitled to separate possession. This in itself, however, would be no ground for treating the deed of gift as procured by deliberate fraud on the part of Baijnath, nor do I think it necessarily follows from the unsatisfactory state in which the evidence was left, that the debt of Rs. 1,600 said to be due to his wife was a fictitious transaction. These matters greatly influenced the learned Judge in coming to a conclusion in favour of the respondents, Another matter, and one about which the learned Judge appears to have been in error, also influenced him in arriving at his conclusions. It appears that a copy of Register D showing the transmutation of names in respect of all the villages of the estate was put in evidence at the trial. From this the learned Judge considered that the villages granted to the plaintiffs had been entered in the names of Baijnath's sons. This does not appear to be the case, however, upon reference to the document in question. Another reason which influenced the learned Judge in arriving at his conslusion was, that some of the appellants' witnesses in giving details of the wish expressed by Raghunath during his lifetime to divide his property amongst his grandsons had mentioned the name of Tilakdhari as one of them. The learned Judge appears to have been under the impression that Tilakdhari was not, born until after Raghunath's death. In this respect, however, the learned Judge was in error, as Tilakdhari was born in February 1907, some five months before, his grandfather's death as appears from Exhibit 9, the petition for obtaining certificate of guardianship, and he was born in his grandfather's home. The learned Judge's mistake arises apparently from a passage in Baijnath's evidence in whith be stated that he did not recollect the month or year of Tilakdhari's birth but that it was about a year after Assar (June) in which his wife and children tame to Barauna. As a matter of fact it was about 8 months later, assuming that his wife and children went there in June.
12. Three of the attesting witnesses to the document of 1908 as well as the scribe were called, Lachman Lal, one of the witnesses, who was a mutsaddi in the family, deposed that the draft was prepared by the Pleader Narsingh Sahai after consulting Bhagela Kuer, and that the draft was read out to and approved, by her, that a fair copy was afterwards made by the scribe and was also read out and explained to Bhagela Kuer in his presence and that he and other witnesses attested it at Bhagela Kuer's request. This witness also gave some evidence as to what happened before the Sub-Registrar when the deed was executed. He also states that Bhagela Kuer told the Pleader what her husband's wishes had been and that the draft was prepared accordingly. He deposed in detail to various fasts to which I have referred earlier and upon which (he appellants rely. He was confronted with an account-book of his own from which it would appear that he was not at Barauna on the day the document was registered and in stating what took plate before the Sub-Registrar he must have been drawing on his imagination. The account book in question shows that certain fees were paid to Narsingh Sahai, the Pleader who drafted the hibanama, and to this extent it corroborates the appellants' story as to Narsing Sahai's part in the matter. This witness like many others of his class appears to have been prepared to give evidence beyond that whith his recollection justified. Mahadeo Sahr, a Dorhi servant of the family and an attesting witness, also speak to tie execution of the document and the reading out and explanation of it to the executant. His impression was that no property had been given under the hibanama to Dharamraj Kuer and he says that if she acquired anything it would not be in accordance with the directions of Raghunath, her father. He also says that at the time of reading over the document, paragraph 6 which related to the gift to Dharamraj and her children was not explained in his hearing but that both the draft and the fair copy were read out in his presence. Deoki Tewari, another witness, says he became a witness to the document on the day it was registered and when the Sub-Registrar was present, and that the other witnesses were also present bet he does not say that they signed it at that time Sham Saran Lal. the scribe, says he read and explained the contents to the executant. He says he read out the document to her on two occasions, once before copying it fair, and the second time at the time of registration and that the witnesses put their signatures on the de turner the day he copied it fair. He further Pays that the Musammat's tame was written on it by Pradhan Ajodhya Prasad on the day the document was registered and on being asked day the Court he stated positively that Pradhanji wrote the name of the Musam-mot on the margin inside the document on the day of registration before the Sub-Registrar, that he did not write the name anywhere else on that day before the Sub-Registrar. From the document itself it appears that the name of Bhagela Kuer was written three times by the pen of Pradhan Ajodhya Prasad, once at the alleged time of execution on the 7th January where the name appears in the margin and twice on the back at the time of registration on the 12th January. The first of the latter signatures is apparently to show that it was presented by her at her residence for registration and the second one to show that execution was admitted by her after identification by Bhuneshwar Singh. It also contains her thumb impression at the back. The fourth attesting witness was not called.
13. From this evidence it seems clear that D(sic)ki Ta(sic)ustil", one of the witnesses, did not sign until the day of registration and it. is not u likely that Ambika Prasad Tewari who has not been called also signed the document on that day, It is obvious from the document itself that a good deal of the saribe's evidence cannot be accepted as the document appears to have been signed by Adjodhya Prasad twice at the time of registration on the back, although the scribe himself says that on that day Ajodhya Prasad wrote the name of the Musammat on the margin inside the document and nowhere else. The fact that one, at all events, and perhaps two, of the attesting witnesses did not sign it until the day of registration would account for his evidence where be says that the witness signed it on that day From the evidence of Lachman Lal and Mahadeo Sahu, the other two attesting witnesses, it would appear that they did sign it before the Musammat at the time of execution on the 7th January and this is the conclusion at which I have arrived after considering the evidence. The learned Subordinate Judge does not appear to have dealt with this aspect of the case and probably it was not forcibly drawn to his attention bat he rejected the evidence of these witnesses as to the document; being read over and explained to Bhagela Kuar. His reasons for arriving at this conclusion and discarding the whole of the appellants evidence were, as I have already pointed out, based to some extant upon a misapprehens on of the effect of the evidence, and although the appellants' witnesses gave evidence, which might not have commended itself to the learned Subordinate Judge, the evidence on behalf of the respondents seems equally open to criticism. There cm be no doubt that witnesses of this clans frequently attempt to bolster up their ease, even when it would appear unnecessary to do so, by deposing to facts which happened many years ago by drawing upon their imagination and what they have learnt from others. But having regard to all the probabilities of the ease I feel utterly unable to believe that Musammat Bhagela Kuar was unaware of the eon. tents of the document which and executed in 1908. What was done by Baijnath Singh on that occasion was done without any attempt at concealment so far as the other persons were concerned. Toe document was registered and the names of the transferees were entered in the Registration Department. Bhagela Kuer herself was constituted the guardian of the property of her minor grandsons under the control of the District Judge. Apparently within a very short time everybody, except the lady herself, was well aware of how the property had been disposed of and a few months after the transaction we find one of the gotias objecting to the registration and endeavouring to obtain possession of the escats on the ground that he was an adopted con of Raghunath. On that occasion the transfer in favour of the appellants was produced and proved in open Court and when everybody else must have known about it it is impossible to believe that Bhagela Kuer alone remained in ignorance. I am further satisfied by Mr. Christian's evidence that she was aware of her grandson's interest in the property and if in fact the gift of 1908 was properly attested by two witnsses and I think it was, it follows that the later disposition of the property in 1917 must fail.
14. There is another matter which is not without sign finance in assisting one to come to a conclusion as to the knowledge of Bhagela Kuer of the contents of the earlier gift. The Pleader Narsingh Sahai, who was alleged by the appellants to have prepared the draft on her instructions, was briefed in the said on behalf of the respondents, although he was not the Senior Pleader and does not appear to have taken a leading part at the trial. As he had been engaged on behalf of the respondents, the appellants not unnaturally refrained from calling him as a witness, His evidence as to the instructions he received from Bhagela Kuer and the preparation of the draft would have been of the greatest assistance to the Court and would pract cally have settled the dispute as to Bhagela Kuer's knowledge of the contents of the dead. I cannot help regrettig that the learned Subordinate Judge did not insist upon this witness being called to give evidence. There was perhaps some excuse for the appellants' failure to call him but I can see no reason why the respondents should not have put him in the witness-box if his evidence could support their case. It is impossible to believe that they did not ask him about it and their failure it and him as a witness is not without significance.
15. There if, however, a further point taken by the appellants before ns in the appeal which is fatal to the respondent case. The document of 1917 relied upon by them, although it purports to be a sale, is, in my opinion undoubtedly a gift as no consideration passed or was ever intended to. It, therefore, required to be attested by at least two witnesses under faction 123 of the Transfer of Property A at. Such attestation can only be effectually performed by those who are actually present at the Execution of the document, and an attestation made merely on the acknowledgment of the executant is not a compliance with the section. After some difference of opinion in the Courts in India upon this question it was finally set at rest by the decision of the Privy Council in Shamu Patter v. Abdul Kadir 16 Ind. Cas. 250 : 85 M. 607 : 16 C. W. N. 7009 : 23 M. L. J. 321 : 12 M. L. T. 338 : (1912) M. W. N. 935 : 10 A. L. J. 259 : 14 Bom. L. Rule 1034 : 16 C. L. J. 596 : 39 I. A. 218 (P. C)., in the sense which I have just indicated. Again in Ganga Pershad Singh v. Ishri Pershad Singh (2.) the actual witnessing of the signature of the executant was insisted on. In the document relied on by the respondents the attestation by each of the attesting witnesses is said to be on admission by the executant and none of the attesting witnesses was called to prove the document as required by Section 68 of the Indian Evidence Act. It appears, however, that this document was admitted without objection at the trial. It was contended on behalf of the appellants that, even so, it could not be received in evidence unless one at, least of the attesting witnesses was tailed to prove it, and the recent case of Shib Chandra Singha Sudhanya Kumar Singha v. Gour Chandra Pal 68 Ind. Cas. 86 : 85 C. L. J. 478. was relied on in support of this contention. I am not prepared, however, to go to the length of that case. It teems to me that, formal proof of a document even when it is required to be proved in a certain way may be waived by any of the parties whose interests it may affect, and this seems to me to be in accordance with Section 58 of the Evidence Act. But, although proof of the document may be waived this does not affect the legal character of the document or its validity as a gift. As in the cafe of the mortgages under Section 59 of the Transfer of Property Act so in the case of gifts of immoveable property, under Section 123 of that Act, they can only be effected by a registered instrument signed by the mortgagor or the donor and attested by at least two witnesses. As already pointed out, their Lordships of the Privy Council have decided that under Section 59 whish in this respect is couched in similar terms to Section 123, attestation, to be valid, must be an attestation of the execution of the document seen by the attestor and not merely an attestation of the executant's acknowledgment or" ad mission of its execution. The attestation in the present case is merely of the executant's admission of its execution and there is no evidence on the record that any of the witnesses were present and saw the execution of the document. It is true that no direct issue upon this point was specifically taken in the written statement or framed at the trial and no argument appears from the judgment of the learned Subordinate Judge to have been addressed to him upon this question. It was, therefore, urged that we should not allow the point to be taken at this late stage or at least that we should remand the case for a finding upon an issue specially framed giving leave to the parties to call evidence as to whether the witnesses were actually present and witnessed the execution. In Shamu Hatter v Abdul Kadir 16 Ind. Cas. 250 : 85 M. 607 : 16 C. W. N. 7009 : 23 M. L. J. 321 : 12 M. L. T. 338 : (1912) M. W. N. 935 : 10 A. L. J. 259 : 14 Bom. L. Rule 1034 : 16 C. L. J. 596 : 39 I. A. 218 (P. C)., already referred to, a somewhat similar situation arose. The question for decision there was under Section 59 of the Transfer of Property Act. No direct issue upon the point was taken in the phadings nor was the issue raised at the trial bat the Trial Judge after the evidence had been taken and after the arguments were concluded framed a special issue and decided the case upon it. Their Lordships held that this was permissible under Section 149 of the Civil Procedure Order of 1882 corresponding to Order AIV, Rule 5 of the present Code, and further stated that even had there been no such express provision in the Code every Court trying civil causes has inherent jurisdiction to take cognizance of questions which ant at the root of the subject matter of controversy between the parties. In Ganga Pershad Singh v. Ishri Pershad Singh 45 Ind. Cas. 1 : 45 C. 748 : 4 P. L. W, 349 : 16 A. L. J. 409 : 34 M. L. J. 545 : 27 C. L. J. 548 : 22 C. W. N. 697 : 20 Bom. L. Rule 587 : 23 M. L. T. 388 : (1918) M, W. N. 382: 8 L. W. 176 : 45 I. A. 94 (P. C,) again the precise point was not raised in the pleadings nor in the issues framed at the trial but arose incidentally in connection with an issue framed relating to limitation, In both those cases an application to remand the case for farther evidence was rejected. In the present case both in the pleadings and in the issues framed before the trial the validity of the document of 1917 was challenged and it was for the respondents, as plaintiffs, to satisfy the Court as to its validity. At an early stage of the trial during the cross-examination of the plaintiffs' father-in law, who was their first witness, questions were asked as to whether the attesting witnesses were present to give evidence. It was admitted that they were not and no attempt wan afterwards made to procure their attendance. After the evidence closed it would certainly have been open to the appellants' Pleader to have argued that the document was not properly attested and, therefore, invalid. It is true there was no argument on the question before the Trial Court but neither was there in Shamu Patter's case 16 Ind. Cas. 250 : 85 M. 607 : 16 C. W. N. 7009 : 23 M. L. J. 321 : 12 M. L. T. 338 : (1912) M. W. N. 935 : 10 A. L. J. 259 : 14 Bom. L. Rule 1034 : 16 C. L. J. 596 : 39 I. A. 218 (P. C). and the mere fact that the Trial Court did not itself decide this point does not preclude us from doing so. "I had some doubt during the argument as to whether we should remand the case to the Court of the Subordinate Judge framing an issue for him to determine upon further evidence, in my opinion it would be useless for us to do so. The attestation of the witnesses purports to be on the admission of the executant and even should one or more of the attesting witnesses be ailed and depose that the document was executed in their presence such evidence would be open to the gravest suspicion its face of the document itself. The attestation of a witness on the acknowledgment or admission of the executant of the document is permissible in the case of Wills and the expression is well understood in this country. It is hardly conceivable that those whose interest it is to get the document attested would take the signatures of witnesses upon the acknowledgment of the executant only if the witnesses had in fact been present at its execution. The respondents, whose attention was sailed to the absence of the attesting witnesses, had every opportunity of proving, is they could have proved it, that the document which purported to be attested merely on the admission of the executant was in fact signed by the executant in the presence of the witnesses. They have refrained from giving evidence upon this essential point is She case and, in my opinion, should not now be allowed to endeavour to prove a case which is in conflict with the document itself.
16. A further point was taken on behalf of the appellants which, in view of the findings arrived at, it is not necessary to decide, viz, that the deed of gift of 1908 was not void but voidable only and must be treated as valid until sat aside in a suit properly framed for that purpose. If the gift were merely voidable it could only be set aside at the option of Bhagela Kuer and she could not transfer her right to sue for that purpose. The point was argued before us and I may state my opinion upon it shortly. Section 19 of the Contrast Act was relied on. That section provides that when consent to an agreement is cused by coercion, fraud or misrepresentation the agreement is a contrast voidable at the option of the party whose convent was so caused and by Section 126 of the Transfer of Property Act it is provided that a gift may also be revoked in any of the oases "save one of failure of consideration" in which, if it were a contract, it might be rescinded. I agree that if this were a voidable contract and not void I(sic)bnitio it wculd have to be set aside before a emit for possession could be maintained, and turtles that Bhagela Kuer could not transfer the mere right to sue but the answer to the appellants' argument appears to me to be that, if the fists alleged by the respondents should be made cut, there was never any consent at all to the gift within the meaning of Section 19 of the Indian Contract Act, and although Bhagela Kuer may have permitted her signature to be written on the document in question she never in fast consented thereto. This, I think is the effect of the well known rule Laid down in Foster v. Mackinnon (1869) 4 C. P. 704, 38 L, J. C. P. 310 : 20 L. T. 887 : 17 W. B. 1105.
17. Although, in my opinion, this point should he decided against the appellants it fallows on the earlier findings arrived at that the appeal should be allowed, the judgment and decree of the Officiating Subordinate Judge should be sat aside, and the suit dismissed with costs, here and in the Court below.
Mullick, J.
18. I agree.