JUDGMENT
1. This appeal arises out of a suit for a share in the inheritance of Rahim Bakhsh, the father of the plaintiff. Rahim Bakhsh died on 24th January 1921 leaving a mother, Mt. Muhammadi, three widows, six sons and two daughters. According to Mahomedan Law the shares would he as follows: The mother, Mt. Muhammadi, would get 1/6 or 56 sihams; The three widows would got 1/8 between them or 14 sihamas each; the six sons would get 34 sihams each, and the two daughters 17 sihams each; total 336 sihams. In 1922 one of the widows, Mt. Latifan who had five sons and one daughter, brought a suit No. 24 of 1922, for partition of the share of herself and her children. The other heirs of Rahim Bakhsh were impleaded as defendants. The suit ended in a compromise whereby Latifan and her children obtained 7/16 of the property and the remaining 9/16 went to the other heirs.
2. The plaintiff, Mt. Amina, has now brought a suit for her share claiming 45 sihams out of 336. She claimed 17 sihams as her own share under Mahomedan Law and 14 sihams as the share of her mother, Mt. Zainab deceased on the allegation that Mt. Zainab had made an oral gift of her whole share in the plaintiff's favour. She also claimed 1-1/3 sihams as heir of Mt. Muhammadi deceased. She further claimed 12-2/3 sihams as her share of the 54 sihams relinquished by Mt. Latifan and her children. On this point we may as well explain at once that in the compromise, which ended the suit instituted by Mt. Latifan and her children, the plaintiffs in that suit got loss than they would be entitled to under Mahomedan Law. They got 147 sihams only instead of 201 sihams. There was thus an excess of 54 sihams divisible among the remaining heirs. In this way the plaintiff claimed the excess which appertained to her mother's share and to her own share. The principal defence was that the plaintiff had made a registered deed of gift of her share which she inherited from her father in favour of her brother, Habib Bakhsh, who is the principal defendant. This document was executed on 2nd March 1922 and purports to make a gift of the 17 sihams inherited from her father to her brother, on condition that her brother should pay her an allowance of Rs. 60 per mensem for her life.
3. It was also denied that Mt. Zainab had made a gift of her share in the plaintiff's favour. It was also pleaded that Mt. Muhammadi had made a gift on 18th April 1921 transferring her whole share of 56 sihams to Habib Bakhsh in lieu of a maintenance allowance of Rs. 60 per mensem for herself for life and subsequently for her two daughters. It was also pleaded that the plaintiff could not benefit from the excess share obtained by the defendants in Latifan's case because the plaintiff was not a party to the compromise. As regards the alleged deed of gift executed by the plaintiff in favour of her brother the plaintiff set up a clear plea of fraud. She said that she never executed, to her knowledge, any deed of gift in favour of her brother but that her brother obtained her thumb impression on certain pieces of blank paper and she did on one occasion affix her thumb impression to a document which she believed to be a mukhtarnama, so that her brother should be empowered to act on her behalf in Latifan's suit.
4. The trial Court found that the plaintiff did in fact knowingly execute the deed of gift and that no fraud or misrepresentation had been practised upon her, but the learned Subordinate Judge found that the document had been executed under undue influence since her brother was in a position to dominate her will and had acted unfairly in persuading her to make a gift of a share of the value of about Rs. 50,000 in return for only Rs. 60 per mensem as maintenance. The Court accordingly hold that the plaintiff was not bound by this deed of gift and that she was entitled to the 17 sihams which was her share under the Mahomedan Law. As regards the alleged deed of gift by the plaintiff's mother, Mt. Zainab, this was held to be not proved. The gift by the plaintiff's grandmother in favour of Habib Bakhsh was held to be proved As regards the share of the excess arising from the compromise in favour of the defendants in Latifan's suit the Court below held that the plaintiff could not get any benefit herself from the excess of 54 sihams since she was not a party to the compromise but she was entitled to 1/3 of the excess which came to her mother Mt Zainab. In the result the learned Subordinate Judge passed a decree for 23-142/177 sihams in the plaintiff's favour.
5. Both parties have appealed. We first deal with the appeal of the defendant Habib Bakhsh. The only point for our determination in this appeal is whether the dead of gift executed by the plaintiff on 2nd March 1922 is binding upon her.
6. The original deed of gift has not been produced. We are unable to draw any adverse inference from this fact since the defendant has shown that the deed itself was missing from the house after the plaintiff and her husband left, and he infers that they must have taken it away. The deed was registered and if it was in any way fabricated for the purpose of supporting a false claim it is most unlikely that the defendant would not have produced it. On the plaintiff's own showing it appears that she must have affixed her thumb-impression to the document because she admits that she did affix her thumb-impression to a document presented to her by the defendant Habib Bakhsh but she believed that it was only a mukhtarnama and had no suspicion that it was a deed of gift. We have no reason whatever to suspect, therefore, that the original would not have been found to bear the genuine thumb-impression of the plaintiff.
7. The learned Counsel for the appellant has laid stress upon the fact that the plaintiff never set up any plea of undue influence. She never pleaded that her brother exercised his influence unfairly so as to induce her to part with her valuable inheritance in lieu of a small monthly allowance, but she all along contended that a fraud must have been practised upon her and that she never executed any document which she believed to be a deed of gift. She absolutely denies that the Sub-Registrar ever came to her house or read out any document to her.
8. On this point we are in agreement with the Court below. The learned Subordinate Judge found that the plaintiff's plea of fraud and misrepresentation was false. The endorsement made by the Sub-Registrar on the occasion of the registration of the deed shows that the contents of the document were fully road over and explained to Mt. Amina who admitted the execution and completion of the document. We are entitled to presume that the facts thus stated are correct. Moreover, the facts are supported by ample oral evidence. We have the evidence of two marginal witnesses who depose that they attested the document after Mt. Amina had executed it and they were also present on the occasion of registration and support the facts mentioned in the endorsement to the effect that the document was read over and explained to the executant who admitted execution. We have also the evidence of two other witnesses who were present on the occasion of the registration and who identified Mt. Amina as the executant in the presence of the Sub-Registrar. We see no reason to disbelieve them.
9. In our opinion the evidence is overwhelming to the effect that the plaintiff did execute the document and did admit its execution in the presence of the Sub-Registrar after it had been fully explained to her. We hold that she made the gift willingly and fully understanding the nature and effect of her act. This finding is supported by the written statement dated 6th May 1922, filed on the plaintiff's behalf, in which she clearly admitted execution of the deed of gift. This evidence, however, is not conclusive as the plaintiff's knowledge of this statement is not clearly proved. The Court below has held that the plaintiff is not bound by this deed, in spite of the fact that she admitted execution after it had been read over and explained to her, on the ground that she had no independent advice and her brother was in a position to dominate her will and that he took unfair advantage of her position.
10. In the first place, we observe that the plaintiff herself never raised the plea of undue influence and that issue did not arise for determination. The plea of undue influence would have been quite inconsistent with the plea of fraud. In the next place, even if we consider the matter upon its merits we see no reason to suppose that the plaintiff was unfairly treated. Her grandmother had executed a similar deed of gift of her share, which was of much greater value in favour of Habib Bakhsh in lieu of a maintenance allowance of Rs. 60 a month only for herself and for her daughters. There is no allegation that the grandmother executed this deed under undue influence and we see no reason to suppose that the plaintiff was not actuated by feelings of family affection in allowing her brother to retain possession of the share of the inheritance to which she was entitled. The property consisted largely of a business of hardware etc and the business itself would no doubt suffer severely if the stock-in-trade had to be reduced owing to reduction of capital. The business could not be considered free from trading risks, it would be liable to losses as well as to profits and the plaintiff at least obtained a certain income of Rs. 60 per mensem. Although the plaintiff is a pardahnashin lady it is not essential to prove that she had independent advice before she executed the gift. The transaction was not of a complicated nature and she doubtless consulted her mother who was in the same house and who was (according to the plaintiff's, own case) devoted to her interests. In considering the question of fraud and undue influence we must also take into consideration the admitted fact that the plaintiff did receive Rs. 60 a month from her brother for about 18 months without raising any objection. She evidently was content that the terms of the gift should be acted upon. We see no reason for holding that she should not be bound by it We decide this point in the defendant-appellant's favour.
11. We next turn to the plaintiff's appeal No. 56 of 1926. The first point taken is that the Court below has wrongly held the alleged gift by Mt. Zainab in the plaintiff's favour to be unproved.
12. On this point regarding the oral gift the only evidence consists of the statement of the plaintiff herself. We agree with the Court below in finding that this is quite insufficient for proving the alleged gift. The next point is that the Court below was wrong in finding that the gift by Mt. Muhammadi in favour of Habib Bukhsh was proved, and even if it were proved then the gift was invalid on the ground that the gift of undivided property "mushaa" cannot form the subject of a valid gift under the Mahomedan Law.
13. There is no force whatever in the contention that the gift was not proved since it was effected by a registered document and this part of the plea is not pressed. On the question whether a share of undivided property can be made the subject of a valid gift the learned Counsel for the appellant has been unable to refer us to any authority for holding that the gift of an undivided share by one cosharer to another cosharer in the same property is invalid. We see no reason to differ from the finding of the Court below on this point. The principle point raised by the learned Counsel for the appellant is that the plaintiff is entitled to benefit in proportion to her share, in the excess of 54 sihams to which we have already referred.
14. In para. 5 of the plaint the plaintiff stated that in the suit brought by Mt. Latifan for her share of the assets of Rahim Bakhsh it was, with the mutual consent of the parties decided by the Court that the heirs of Mt. Muhammadi, Mt. Zainab, Mt. Mahbubi, Habib Bakhsh and Mt Amina plaintiff would get something more than their shares under the Mahomedan Law, i.e., they were jointly given 9/16 share in the estate of Rahim Bakhsh and defendants 2 and 4 to 9 were declared to be the owners of the remaining 7/16 share. In para. 5 of the written statement of defendant 1 it was admitted that 9/16 was fixed as the share of Habib Bakhsh and others and that 7/16 was fixed as the share of the plaintiffs in that suit. In our opinion this amounts to an admission that the persons mentioned in para. 5 of the plaint were jointly entitled to 9/16 in the assets of Rahim Bakhsh. On this admission the plaintiff is in our opinion entitled to a share in the excess of 54 sihams. We construe the plaintiff's deed of gift as conveying to Habib Bakhsh only the plaintiff's legal share, and not her share in the extra 54 sihams which subsequently became divisible among the heirs other than Mt. Latifan and her children. The proportion to which the plaintiff would be entitled works out as follows:
15. The persons entitled to the excess, and the proportion to which they are entitled would be as follows:
sihams Mt. Muhammadi ... 56 " Mahbubi ... 14 " Zainab ... 14 " Habib Bakhsh ... 34 " Amina ... 17 ______ Total ... 135 ______
16. The plaintiff's share out of the 54 sihams would, therefore, be 17/135 of 54 which comes to 6-4/5. In addition to this she is entitled to 1/3 share of the estate of her mother, Mb. Zainab, which comes to 6-8/15. The total share to which the plaintiff is entitled, therefore, amounts to 13-1/3 sihams.
17. The result is that we modify the decree of the Court below by ordering that the plaintiff shall get 13-1/3 instead of 23-142/177 sihams out of the property of Rahim Bakhsh. In other respects the decree of the Court below holds good. We further declare that the plaintiff is entitled to Rs. 60 per mensem to be paid by Habib Bukhsh for her lifetime. The parties will receive and pay costs in proportion to their success and failure.