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proceedings, but declares that no change of possession, in fact, has as yet
taken place in respect either of her title or her possession of the property,
the subject-matter of the suit. The deiendant, Musammat Sakina, for
herself and as guardian of her minor son Yakub and her imbecile brother
Murtaza, admitting the execution and registration of the deed and the
institution of the mutation proceedings, denied that the plaintiff was ignorant
of any of the terms or of the effect of the deed, maintaining that she was
made aware of them and was a party to them with the fullest knowledge,
notice and assent. The defendants also claimed to have obtained complete
possession under the deed.

The issues set down for trial were

(1) Of possession.

(2) Of the knowledge and notice with which the plaintiff executed the
deed, i.e., whether the plaintiff had full knowledge, notice and consenting

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IINDTAN DECISIONS, NEW SERIES



[Yol.



1891 power in respect of all the terms and of the legal effect of the deed, or
FEB. 16. the execution thereof was procured by or for the defendants through fraud

practised on the plaintiff.

APPEL- The Court below found that the deed was executed with the full

LATE knowledge and understanding of the plaintiff, who at the time [12] had

ClVIL. faN disposing power, and that possession had consequently been delivered to

the defendants. I will consider aterwards, as the case was argued before

14 A. 8= U8 a (; length upon all the issues, the evidence and the reasonings which led
1 A.W.N. th e Q our t below to these findings, both of which are in my judgment
(1891) 213. incorrect. But the main and paramount question raised by the pleadings
has not been sufficiently, if at all, taken into consideration in the trial of
the case, although it is and must be the real pivot of decision in actions
like this for relief from the operation of a deed admittedly executed but
challenged on the ground of fraud. This issue of course is whether the
Court had reason to be satisfied that the plaintiff-appellant was in the
true and full sense of the word a consenting party to the deed of the
llth September, 1888 ; that the meaning of all the phrases and clauses
of the deed were fuliy explained to the plaintiff ; that she knew,
not only what she was doing, but also what the legal and practical
effect of the deed to her and her estate would be ; and that there
was evidence of entire good faith (uberrimae fidei) in respect of the
entire contract and the proceedings consequent thereupon. The law
on this subject has beea fully explained in many judgments of their Lord-
ships of the Privy Council, notably in the case of Asghar Ali Delroos
Banoo Begum (1), in which it was laid down asa general rule that "it is in-
cumbent on the Court, when dealing with the disposition of her property
by a parda-nashin woman, to be satisfied that the transaction was ex-
plained to her and that she knew what she was doing, and especially so
in a case * * * where, for no consideration and without any equivalent,
a lady has executed a document which deprives her of all property. "

This and other rulings are referred to in detail in the cases of Behari
Lai v. Habiba Bibi (2) and Kaniz Fatima v. Abbas Ali (3), in both of
which, judgment was delivered by my brother Straight, and in Mahomoed
Bukhsh Khan v. Hosseini Bibi (4) where the Judicial Committee laid
down the following tests as being generally applicable to all 'cases
of deeds executed by pardah-na&hin women in the East, tests, which
are still more forcibly applicable to a case like the [13] present where
all the circumstances of the plaintiff and the medical evidence on the
record raise serious doubta whether she was in the months of September
and October 1888 in the true and full sense of the words compos mentis
for the transactions in question. We have to see whether the arrange-
ments embodied in the deed of the llth September, 1888, were righteous
in their character, whether they were provident or improvident in regard
to the old lady, the plaintiff, whether the arrangements were such as to
require that she had previous independent advice regarding them, and
what was the origin of her intention to act in . the ways the
document sets out. Now, except in regard to her mental health and
the nresumbale good will of the parties around her at the time,
the Court below has not considered any of these points, and it was frankly
admitted at the hearing of the appeal by the learned Counsel for the
respondents that the record contains no evidence and no materials
for a finding on the paramount question of independent advice. We have

(1) 3 C. 324 at p. 327. (2) 8 A. 267. (3) 7 A.W.N. (1887) 84. (4) 15 C. 684.

380



YII]



MABIAM BIBI V. SAKINA



14 All. 13



an executant far advanced in years, over 70 years of age, shattered in
health, and more particularly in her nervous organisation, by an over-
whelming calamity which had left her for the first time for very many
years without any independent counsellor in her own house. She is
evidently a woman of an excitable and morbid temperament. She is
illiterate, and she was surrounded by persons who had considerable and
conflicting interest in the disposition of her estate. It appears that, though
her daughter Sakina Bibi lived mostly with her husband in the Jaunpur
district, the plaintiff had been helpful in tbe nature and education of
her young family, the minor son Yakub being educated and cared for
at the plaintiff's house. It also appears that the defendant Murtaza
was the almost helpless object of the plaintiff's care and support, but
under the Muhammadan Law the defendant Sakina and her brother
Murtaza would be the sole heirs upon her death of the plaintiff's property,
the former presumably taking i and the latter f of the whole. On
the death of her son, Muhammad Husen, one Yad Ali, a nephew of
the plaintiff, took his place in the management of her affairs, and
we find that his sister is married to the imbecile Murtaza. I noticed
above that Shakurul Husen is married to one of Sakina Bibi's [14]
daughters, while her minor son Yakub is betrothed to the daughter
of Fakir Husen of Sheikpur. Thus it would be to the interest of Shakurul
Husen and Fakir Husen that some provision should be made for Musam-
mat Sakina Bibi's son and daughter just mentioned. One of the modes
for effecting this would be to cut down the lawful share of the imbecile
defendant and to increase that of Sakina Bibi, an arrangement which
would be obviously distasteful to Yad Ali, the brobher-in-law of the im-
becile heir Murtaza. Evidently, then, here was a case peculiarly calling
for independent advice. We will see later on how this condition was
fulfilled. To apply the other tests mentioned above, it will be convenient
now to glance at the deed. It is printed at page 12 of the appellant's
book and is No. 6 of the record. It sets out that Mariam Bibi, aged 70
years, desired to divide all her property among her offspring and heirs and
to put every one of them in possession of shares and property "during
her lifetime." I may observe here that the document, which is of
considerable length, is couched in technical and artificial phraseology,
the terms used being generally foreign in their character, mainly Arabic,
such as would not ordinarily, or at least readily, be understood
by an old, infirm, illiterate and partially deaf woman. For example, the
very important words "during my lifetime" are in the vernacular of tbe
deed "6a hoyat apne," whereas a person like the plaintiff would certainly
not use such a phrase, but would say " apni zindagi men" or jab tak ki mein
zinda rohun." The property was divided under the deed as follows: That
8. annas of the Eahmanpur property with the groves and dwelling house
should be given and delivered at once to Mir Murtaza Husen and to Mu-
hamad Yakub in equal shares, and that Musammat Sakina should at once
have title and possession of all the Mirzapur m'ati property and all the
plaintiff's decrees and outstanding debts respecting that estate, and that
tbe executant should at once be removed from the Government papers
and should have thenceforth no claim to any part of the property. Fur-
ther, the imbecile defendant Murtaza and his property were placed under
the guardianship and protection of Musammat Sakina Bibi. In this way,
while half the Allahabad property was given to Sakina Bibi's son Yakub
who was not an [15] heir at all, Sakina Bibi took all the m'aft property in
Mirzapur with the decree and other securities attaching thereto, and, in her

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[Vol.



1891 capacity of guardian of her minor son and imbecile brother, she became
FEB. 16. practically the mistress of all the Allahabad estate for many years and of

Murtaza's half for the full period of his life. The deed was executed in the

APPBL- village of Sheikhpur, closely adjoining the village and tahsilof Phulpur, the

LATE plaintiff's name was attached to this deed by the pea of Fakir Husen of
Civil*. Sheikpur, whom I have mentioned above, and her signature professes to

have been attested by Muhammad Hanif of Sheikhpur. Muhammad Ishaq

14 A. 8* of Sheikhpur, Wazir Khan of Sheikhpur, Abdul Ghafurof Sheikhpur and
11 A.W.N. Muhammad Baksh of Sheikhpur. I have said that the execution of
(1891) 213. the deed purports to have been attested by these men. It will appear

further on that not one of these men was present when the plaintiff's
name was put to the document. On the same Ilth September 1888,
between 3 and 4 o'clock the deed was presented for registration in the
tahsil of Pbulpur by Fakir Husen, the executant at the time lying in
her doli outside the building. The registering officer recorded that the
plaintiff was identified in the doli by Fakir Husen and by Abdul Ghafur,
one of the attesting witnesses just mentioned, and he wrote that the
executant requested that the deed after the registration should be handed
over to her relation Fakir Husen," and the document was registered upon
that day. Immediately afterwards the plaintiff, through the same Fakir
Husen and Abdul Ghafur, put in the petition No. 35 of the record praying
for expungement of her name and record of those of Murtaza Husen and
Muhammad Yakub.in lieu thereof for the 8 annas zemindari of Eahmanpur,
the minor, Muhammad Yakub, to be and to remain under the guardianship
of his mother Musammat Yakina Bibi. The plaintiff was again identified
in this office by the same Fakir Husen and Abdul Ghafur, and at the
same moment a counter-application for record of. the names of Sakina,
Murtaza Husen and Mahammad Yakub, was put in by Shakurul Husen,
son-in-law of Sakina Bibi. When the proceedings had reached this stage
the lady was taken to her home in Eahmanpur, where, she said, some weeks
afterwards she learned with amazement that she had set proceedings on
foot [16 j which would divest her of all title to and possession of her Allah-
abad property. Let us see now what the character of this transaction
was. From the plaintiff's point of view, it can hardly be described as a
righteous thing that in her old age and infirmities she should have been
put entirely at the mercy of her daughter, whose marriage duties required,
that she should for the most part reside far away from the plaintiff in
her husband's house in Jaunpur, while the other person to whom she
had transferred everything she possessed in the world were an adulb
imbecile and a young boy. The improvidence of the transaction requires
no statement, and it appears to me that the disposition of property
contained in the deed is as remote as possible from the ideas which are
shown to have possessed the old lady's mind when her intention to deal
with her property in anticipation of her death originated. I have said
above that it is conceded that there is no evidence whatsoever that the
plaintiff had any independent advice in respect of the execution of the deed,
and this would itself be a sufficient reason for reversing the decree below
and for giving the relief she seeks. But I may as well briefly consider
the bearing of the evidence upon the other features of the case. It is
incumbent upon the defendants who set up and rely upon the deed to
show affirmatively that the plaintiff entered into it with full knowledge
and understanding and disposing power, and that the entire transaction
was free from circumstances throwing any shadow of doubt or suspicion
on the inception, execution and application of the deed. The evidence of

382



MARIAM BIBI V. SAKINA 1$ All. 18

Yad Ali, whose interest in the case is of a perfectly justifiable and legifc- 1891
imate character, is instructive upon these points. His interest or bias is FEB. 16.
limited to this, that he objects to see his sister's husband, Murtaza Husen,
deprived of his lawful share in the estate under the Muhammadan Law. APPEL-
This desire seems to me to be not only natural, but, looking to the disabi- LATE
litiesof Murtaza Husen, commendable also. Yad Ali proved that he was CIVIL

the person best qualified to advise the plaintiff in August-September 1888,

about the disposal of her property ; that he was the person most accessible II A. 8=
to her at the tima ; that her main desire then was to deal with -g-of the pro- 11 A.W.N.
perty for the spiritual benefit of herself and her favourite son, the remainder (1891) 213.
[17] of the property being left to follow the ordinary course of Muham-
madan law at her death. He stated that he was absent from Eahmanpur
in September when the plaintiff was taken alone to the residence of Fakir
Husen in Sheikpur, and that before she left she told him in the presence
of Fakir Husen in Bahmanpur that "Fakir Husen agreed in her idea of
reserving of the property for religious purposes and leaving the rest
to Sakina and Murtaza after her death." He stated that in October he
learned by a letter from Sheikphur, written by a person practising in the
Phulphur tahsil,what the real contents of the document were, and he also
heard in this way of the mutation proceedings. He then told the plain-
tiff that the document was not written in the way she meant, and that it
contained no provision for religious uses. He said that the plaintiff at once
ordered him to recall the document and to bring Fakir Husen to her, but
that they could not get either the document or Fakir Husen. The witness
shortly afterwards lodged formal objections, on behalf of his brother-in-law
and of the plaintiff, bokhedekhikharjij proceedings. The plaintiff gave similar
evidence, and though her testimony contains inconsistencies and contradic-
tions, they appear to me to be due to her peculiar condition at the time
when she was ill, nervous, weak, excited and indignant. Her evidence aa
a whole produced on our minds a strong impression of its substantial truth
and honesty. She swore that her wish in August and September 1888,
was " to give some property in the name of God and make a mosque for
the benefit of myself and my deceased son in the next world, and that the
remainder should remain in the name of my dumb son and Sakina during
my lifetime." The latter words were cited by the learned Counsel for the
respondent in support of the provisions of the deed putting Sakina and
Murtaza Husen in possession of a part of the property during the plain-
tiff's lifetime, but this would not be the same thing as making over the
property in proprietary possession to any one, and further, however this
might be, it is utterly divergent from the terms of the deed, which reserve
nothing whatsoever for spiritual uses, and devise part of the property to
the minor defendant, Muhammad Yakub. The plaintiff added that the
foundation of the mosque had been laid by [18] her, and that she was
preparing bricks for building it. She swore that when she was taken to
Fakir Husen's house and the execution of the dead was proposed to her,
she bade them send for Yad Ali, but was put off by Fakir Husen, who
said that he was at Allahabad. She swore that Fakir Husen never
explained the deed to her, nor read it to her, nor gave it to her. She
swore that she had no conversation with the attesting witness Muhammad
Hanif, and that she never saw the other attesting witness Wazir. She
went further and swore that she did not tell any person in Sheikbpur to
witness the deed. She added that she keeps pardah from the attesting
witness Muhammad Ishaq and she disowned all knowledge of the prosed-
ings after registration at the tahsil of Phulpur. She challenged Fakir

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FEB. 16.

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11 A.W.N.

(1891) 213,



Husen, who was present during her examination, " to stand up and say in
her presence and in that of the Commissioner taking her evidence that he
had explained anything'to her." She declared that the moment she heard
in October 1888, of the fraud practised upon her, she ejected Sakina Bibi
and her family from her house in Rahmanpur. As against this evdence the
defende relied on a deposition of the plaintiff made in the Revenue Depart-
ment on the 10th November 1888, which was admitted in evidence by t>he
Court below against the plaintiff, and to which she took no objection. She
then said, " I have executed the deed of partition," which no doubt she had,
in so far as she authorized Fakir Husen to affix her name to the paper
purporting to be the deed of partition of the llth September 1888 ; but
this admission does nob help the respondents, more particularly when we
find it accompanied by the statement that the deponent had no wish that
any change whatever should be made in respect of her property during
her lifetime. The statements of Yad Ali and of the plaintiff as to her inten-
tions prior to the execution of the deed are strongly corroborated by the
apparently independent and respectable evidence of the witness Dawar
Husen, who 'is related to the plaintiff and has no apparent interest in this
controversy either way. I will now examine the evidence which the
respondents rely on in defence of the deed. Fakir Husen of course is
the leading witness. I have shown how he was interested in the peculiar
provision for the defendant, [19] Muhammad Yakub, who had no title to
the plaintiff's inheritance under the Muhammadan law. Ho deposed that
the draft of the document was read over to the plaintiff, but there is no
evidence of this fact. He said that " since the execution of the document
the defendants are in possession of the property, " but I believe this state-
ment to be absolutely untrue. He said that " it was the plaintiff's desire
that the document should be completed away.from her home in Rahmanpur
to avoid the opposition of Yad Ali. " There is nothing to support and
much to contradict this statement. He said that he handed over the docu-
ment to the plaintiff after he had affixed her name to it, and he implies
that it did not again come to his hands till after registration. I believe this
statement to be incorrect for reasons which will appear below. And lastly,
this witness had to admit that he was taking an active part in conducting
and supporting the respondents' case, and that Ata Husen, their leading
witness on the issue of possession, was closely related to him by marriage.
The remaining witnesses belong to the group directly connected with
the execution and registration of the deed. Muhammad Hanif was
not present when the deed was aignad by the plaintiff. He says that
he was subsequently asked to make attestation and did so. He makes
the surprising statement that " he had read this deed of gift and had
read it over to the plaintiff in a loud voice. All the contents of the
deed were admitted by the plaintiff." He gives no reason for this
unusual proceeding. His attestation, such as it was, was limited to this,
that the plaintiff told him she had previously executed the deed. What
then would be the need for or likelihood of this ex post facto recita-
tion and admission ? This is, I think, the first time in many years that I
have heard of a marginal witness of this sorb being expected or allowed to
read a deed to the executant. The witness was no relation or close
friend of the plaintiff. He is a brother-in-law of his co-witness Muham-
mad Ishaq. He i8 in no way connected with the defendants or with
Fakir Husen, but is in a position to swear that this document " was
not executed nor any draft of it made with the advice of Kazi Pir
Bakhsb, Shakurul Husen and Fakir Husen." But in this be is directly

384



YI1]



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14 All. 21



contradicted by the independent witness Muhammad [20] Bakar, who
" wrof-e out the deed from the draft brought to him for that purpose
by Kazi Pir Bakhab, Sbakurul Huseo and Fakir Husen." Ha had
no idea, he says, where and when the document attested was exe-
cuted. He said that the plaintiff had never taken his advice on any
matter except on this occasion, and be adds the significant statement
that there was no one in the room during the interview when he was
reading t!i^ document to her. I do not believe this witness. The next
is Muhammad Isnaq. He also was no witness to the execution of the
deed. He fra\s: 'the plaiotiff asked me to sign, and so I signed. The
deed had already her signature before I attested it." He did not read the
deed, but, strange to say, the plaintiff told him its provisions. This
witness is the brother-in-law of the preceding witness, and the nephew
of Sbakurul Husen, son-in-law of the respondent Sakina Bibi. When
the witness was asked how he knew that the contents of tbe deed
were in conformity with tbe executant's wishes he pretended that he
read the document after registration and found that it tallied with
what tbe executant had told him. I do not believe this witness. Next
in order comes the attesting witness Wazir Khan, a Kanwal or itinerant
bard, whom the witness Eakir Husen described as " belonging to a high
caste." He professes to know and come into the presence of the plaintiff,
which she indignantly denied. He says that he was called into the
plaintiff's sitting room and near her beside he read the deed from begin-
ning to end and then attested it. At this interview also no one but the
witness was present. The remaining marginal witnesses were not examin-
ed, or at least their evidence has not been brought before us, although
one of them was Abdul Ghafur who professed to identify the plaintiff
in the registration of the deed and 'in the mutation department.

I find^t difficult to understand how upon such evidence as this, con-
trasted witb that of tbe plaintiff, of Yad Ali, and of Dawar Husen, the
Court below persuaded itself that the deed was executed with the full
knowledge and comprehension of the plaintiff on her part and without
fraud or undue advantage of any sort practised on the other side. The
rest of the evidence is devoted to showing on [21] the one hand, that the
plaintiff never for a day parted with possession of her property, and, on the
other, that the defendants after the mutation of names obtained possession
of all the property, except such as was in the hands of a mortgagee. It is
enough to say on this point that I find that balance of testimony largely
in favour of tbe plaintiff ; the few insignificant instances of rent alleged to
have been paid to the respondents on tbe Mairzapur property being evi-
dently manufactured for tbe purpose of this suit, and not being such, even
if they occurred, as to indicate any real or practical possession in defeas-
ance of the plaintiff's posession. I will now only notice briefly the
reasons which influenced the Court below. The learned Subordinate
Judge made a point against the plaintiff out of the 4th paragraph of her
plaint in which she, a Sunni, professed an intention of providing a wakf
for " Imambara and Majlis in honour of the two Imams," whereas such a
dedication of property would be made by a Shia Muhammadan only,
but the Subordinate Judge himself bad noticed that the intention of the
plaintiff, as described in her own evidence and in that of her witnesses, was
to build a mosque, which it appears was in course of erection during the
trial of the suit below, while the development about the Imambara Majlis
appears for the first time in the plaint. I think it is more fair to judge
the plaintiffs by her proved wishes in August-September, 1888, then by the



1891

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14 A. 8^
11 A.W.N.
(1891) 213.



A VII-49



385



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 58 of 155)