JUDGMENT George Knox, J.
1. This is an appeal brought by Kallu find Karamat-ul-lah who were defendants in the Court of first instance. The plaintiff was one Parbhu Lal. The lower Appellate Court has found upon evidence certain matters to which 1 shall presently refer, and the learned Vakil who appeared for the appellants has more than once stated in his argument that he accepts the findings of fact as found by the lower Appellate Court. His contention is that the lower Appellate Court has drawn wrong inferences of law, and not that it has arrived at wrong findings of fact. It is admitted in the case that the appellants executed a kabuliat on the 4th of November 1909 in favour of the respondent and that that kabuliat was afterwards registered.
2. The findings of fact are that one Abdullah was co-sharer in the village, that the land in suit was Abdullah's sir land, that Abdullah's proprietary rights passed by sale to Ahmad Bux and that Ahmad Bux in turn transferred the rights, whatever they were, to the respondent. The result of all these transactions was that Abdullah became an ex-proprietary tenant of this land. After becoming ex-proprietary tenant Abdullah sub-let those tenant rights to the appellants. Later on the respondent ejected Abdullah on the 3rd of August 1909. With that ejectment of Abdullah went the tenant rights of the persons to whom Abdullah had sub-let them, i.e., the appellants. Three months after this had come and gone the appellants executed the kabuliat in favour of, the respondent. It is not easy at first sight to see how this position can he got out of but his arguments addressed to me have been very ingenious.
3. They are (1) that when Abdullah was ejected the tenant rights of Abdullah enured. In favour of all the co-sharers. The appellants were two of such co-sharers, I believe there were eight in all, and the tenants rights enured partly in favour of other co-sharers in the mahal. It is not easy to see what follows from this argument. The position laid down is unassailable; it amounts to this and no more, that the appellants by reason of being co-sharers of the whole mahal become co-sharers of the rights vested in Abdullah, nothing more.
4. In the course of the delivery of this judgment I was informed that what the argument meant was that upon the ejectment of Abdullah the ex-proprietary rights of Abdullah became extinguished and the land which Abdullah held became ordinary laud. Press this as far as it can be pressed, it will not extend to the necessary inference that the appellants became tenants or joint tenants in the land in dispute. In the course of the argument allusion was made to the evidence of the patwari who is said to have stated that this land became the kasht of all the proprietors. Tins may or may not be a correct interpretation of what the patwari did say. The mere fact that land was written down in the patwari papers as khudkasht land will not make that land khudkasht, more than an entry in the patwari papers will be required to establish this, when disputed, as in this case.
5. Then the second contention is that the appellants never got possession. The lower Appellate Court has considered this question and finds that the land covered by the kabuliat is cultivated by the appellants or their relatives. This is tantamount to a finding that the kabuliat was acted upon. But there is a still further contention and that is that the kabuliat is void, inasmuch as it was executed under undue influence and my attention was directed to Section 10 of Act IX of 1872. This point also did not escape the consideration of the lower Appellate Court. That Court found itself unable to deal with this issue and referred to the Court of first instance the following issues: "Whether the defendants executed the said kabuliat, dated the 4th November 1909, through undue influence, and was that influence exercised by the plaintiff or by anybody else acting on his behalf? In the order of remand the Court was directed to take such additional evidence as may be necessary for a proper decision. The finding returned was that the defendants were unduly influenced to execute the kabuliat because there was a criminal case pending between the parties under Sections 352 and 447 of the Indian Penal Code and the plaintiff said he would not withdraw it unless the defendants executed the kabuliat. The lower Appellate Court considered this finding and disagreed with it. It held that if the defendants agreed to execute the kabuliat on the 1st November 1909 because the plaintiff withdrew his charges against them under those sections, it was not undue influence but consideration and that the defendants were the gainers by the ka Initial, because they had otherwise no right to hold the laud in question. Section 16 lays down that "a contract is said to be induced by undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other." The criminal case was a charge of offences punishable under Sections 447 and 352. Neither offence is a grave charge and both the offences are offences which the law permits parties to compound. Seeing that this particular kabuliat was both executed and registered some three days after it was executed, the burden of proving undue influence would be on the appellants. The words of Section 16 of Act IX of 1872 are important; they go on to say that "where a person who is in a position to dominate the will of another enters into a contract with him, and the transaction appeal's, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other." The words themselves show that this Clause 3 applies only to a transaction which on the face of it or on the evidence adduced appears to be unconscionable, it would be a very long step indeed to take to say that, under the circumstances which have been found by the lower Appellate Court that, the execution of this kabuliat would be an unconscionable transaction. The, probability is that the respondent was for some reason very anxious to get this kabuliat executed, but there is nothing in the kabuliat itself to show that it was a hard bargain or otherwise of an exacting nature, even if we go so far and hold that a criminal case of a nature here represented had sprung up between the parties. The fact that the prosecutor was ready to compound the offences and to withdraw the charges if the kabuliat was executed and that the appellants were ready to execute the kabuliat on condition of the withdrawal of the charges, would not lead to the necessary inference that the respondent was in a position to dominate the will of the appellants and that he used that position to obtain an unfair advantage upon them. The appellants are Muhammadans, the respondent is a Hindu and a mahajan. There is nothing to show that there had been any previous money transactions between the parties and that they, therefore, started in this race unfairly. This Court has had occasion to consider this very question in Gobardhan Das v. Jai Kishen Das 22 A. 224 : A.W.N. (1900) 52. That case, it is true, was decided before Section 10 of the Indian Contract Act had' been amended, but the amendment does not seem to make this case without value as a precedent. The observations of the Chief Justice, Sir Arthur Strachey, lay down what is meant by undue influence The learned Chief Justice says, referring to that particular case: I have no doubt that at the time when he executed the submission he was to some extent, at all events, in fear of the criminal proceedings, but he does not say a word to suggest the conclusion that the plaintiff or any one else took advantage of his state of mind to apply any pressure or exercise any influence to procure his consent, it cannot he held that a. state of fear by itself constitutes undue influence. Assuming' a state of fear amounting to mental distress which enfeebles the mind, there must further be action of some kind, the employment of pressure or influence by or on behalf of the other party to the agreement." Nothing of this kind has been alleged or proved in the present case, and I hold that the lower Appellate Court was right in its finding that the execution of the kabuliat was not brought about by undue influence on the part of the respondent.
6. One more contention was pressed before me and that was that the respondent was not entitled to bring this case without joining as parties to the case the oilier co-sharers. Section 194 of Act II of 1901 was cited in support of this contention, also that if the respondent could sue alone he was not entitled to recover anything more than his share of the rent. But this contention entirely overlooks the finding that a special kabuliat has been executed and registered in favour of the respondent. The respondent is suing upon that registered kabuliat, to which he and none of the other co-sharers was a party. The case appears to me to fall under Clause 2 of Section 194. There was a special contract between the parties, the respondent was entitled to recover separately his share of the rent payable by the appellants, It would be for the lambardar and the co-sharers to consider whether they are entitled to any part of this rent and to sue for it, if necessary.
7. None of the other pleas in the memorandum of appeal were pressed before me. In the course of the argument my attention was drawn to the case of Lal Mahomed v. Kallanus 11 C. 519 do not propose to say how far I agree with the learned Judges of the Calcutta High Court, but the case cited seems to me dead against the appellants. The learned Judges are careful to say that in Section 116 of Act I of 1872 the words at the beginning of he tenancy only apply to cases in which tenants are put into possession of the tenancy by the whom they have attorned, and not to cases in which the tenants have previously been in possession. He far as the tenancy in this case is concerned, the appellants had not been previously in possession of the tenancy. As I pointed out in another part of this judgment, they may have been co-sharers but they were not co-sharers of this particular piece of land. The act which put him in possession was the act of the respondent following upon the registered kubuliat.
8. I dismiss the appeal.