JUDGMENT Bajpai, J.
1. This is an appeal by the plaintiffs whose suit for possession of 21/48 sihams in certain zamindari property and a small house specified at the foot of the plaint has been dismissed by the Court below. It might be convenient at the very outset to set forth a small pedigree.
Chaudhry Saiyed Ali Azhar=Mt. Ansar Fatma Bibi (defendant 1)
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2. The plaintiffs to the suit were Mt. Izhar Fatma Bibi, Mt. Saghir Fatma Bibi and Mt. Aziz Fatma Bibi. The defendants to the suit were Mt. Fatma Sughra Bibi defendant 3 (who might be said to be the principal contesting defendant), Mt. Ansar Fatma Bibi, defendant 1, and Mt. Anwar Patina Bibi, defendant 2. Mt. Anwar Fatma Bibi is married to Ejaz Husain, son of Jawad Husain, Mt. Izhar Fatma Bibi and Mt. Saghir Fatma Bibi are married to two brothers, Saiyed Zulfiqar Husain and Saiyed Zulfiqar Haider, sons of Ghulam Haider. Mt. Aziz Fatma Bibi is married to Ali Athar. Saiyed Hasan Ali is the father and general attorney of Mt. Fatma Sughra Bibi. Mt. Ansar Fatma is Hasan Ali's father's phuphi's daughter. Jawad is a cousin of Mt. Ansar Fatma. We have mentioned these names and relationships, because they have some bearing on the case. Chaudhuri Saiyed Ali Azhar died on 4th March 1907, and Muhammad Mazhar and his son Muhammad Azhar died some time in October 1929 within a few days of each other at Karbala where Muhammad Mazhar had gone on a pilgrimage.
3. The allegations on which the plaintiffs brought the present suit out of which this appeal has arisen might be summarized. It is said that after the death of Ali Azhar, his widow Mt. Ansar Fatma Bibi, defendant 1, got her name recorded in the public papers against the entire property left by Ali Azhar to facilitate management during the minority of her children, but all the heirs of Ali Azhar remained joint in business, food and residence and their marriages, gauna and rukhsati were all celebrated from Ali Azhar's house. After the death of Muhammad Mazhar and his son, Mt. Fatma Sughra Bibi, defendant 3, applied for the mutation of her name against five shares and that of Mt. Ansar Fatma against one share in the property of Ali Azhar, and in connexion with the mutation case it was alleged on behalf of Mt. Fatma Sughra Bibi that the plaintiffs, Mt. Anwar Fatma Bibi, defendant 2, and Muhammad Mazhar had relinquished their right in the property left by Ali Azhar in favour of Mt. Ansar Fatma Bibi under a document dated 3rd June 1924 and that under another document dated 12th July 1924 Mt. Ansar Fatma Bibi had made a gift of the entire property in favour of Saiyed Muhammad Mazhar.
4. The plaintiffs took an objection in the mutation case and prayed that their names might be entered against their shares in accordance with the Mahomedan law. The deed of relinquishment relied upon on behalf of Mt. Sughra Bibi was not executed and completed by the plaintiffs, nor did they ever affix their signatures or thumb impressions to any document, understanding that they were thereby depriving themselves of the property left by their father. They said that the plaintiffs were illiterate, village purdahnashin ladies, who could not understand the meaning or purport of the contents of any document, nor was the deed of relinquishment read out and explained to them. The contents of the said document were entirely wrong and Chaudhri Ali Azhar never made any gift of his property to Mt. Ansar Fatma Bibi, nor did he put her in possession of the same in his lifetime. It was pleaded in the alternative that if according to the statement of Mt. Fatma Sughra Bibi Mt. Ansar Fatma Bibi's dower was Rs. 50,000 (the correctness of which was not admitted by the plaintiffs) and if Mt. Ansar Fatma Bibi was put in possession of the property in lieu of her dower, then the entire amount of the dower debt had been paid up till 3rd June 1924 (the date of the relinquishment deed) or at the latest by the time of the institution of the suit. The plaintiffs pleaded ignorance regarding the deed of gift said to have been executed by Mt. Ansar Fatma Bibi on 12th July 1924, and it was said that even if it be proved that the document was executed and completed by Mt. Ansar Fatma Bibi, then, as she was in possession in lieu of dower and as she did not transfer her dower debt, Saiyed Muhammad Mazhar and after him his widow acquired no rights in the property inherited by the plaintiffs from their father Saiyed Ali Azhar. Defendants 4 to 8 were impleaded as transferees of certain portions of the property and as regards them it was said that they obtained the transfers with the knowledge of the plaintiffs' right and the transfers were not binding on the plaintiffs. The suit there, fore was for possession of zamindari and house property as mentioned above.
5. The principal contesting defendant was Mt. Fatma Sughra Bibi, the widow of Muhammad Mazhar, defendant 3, and she stated that Saiyed Ali Azhar made a gift of the entire property and the house in question to Mt. Ansar Fatma Bibi during his lifetime and put her in possession and enjoyment of the same. She further said that the plaintiffs' allegations that they were illiterate and that they executed no deed of relinquishment was entirely wrong and even if it be assumed that Mt. Ansar Fatma Bibi entered into possession of the property in lieu of dower, then by reason of the deed of relinquishment executed by the plaintiffs Mt. Ansar Fatma Bibi became the owner of the property and after the execution of the deed of gift by her on 12th July 1924 Muhammad Mazhar became the owner of the said property and after the death of Muhammad Mazhar and his son, Mt. Ansar Fatma Bibi, the mother of Muhammad Mazhar became the owner of a one-sixth share and the contesting defendant became the owner of a five-sixth share. The dower debt of Mt. Ansar Fatma was alleged to be Rs. 50,000 and it was said that nothing had been paid to her so far. Mt. Ansar Fatma Bibi also filed a written statement and she said that Chaudhri Saiyed Ali Azhar put her in possession of the entire zamindari property, sir and nankar land, household goods and the house, in lieu of her dower debt of Rupees 50,000 and she had all along been in possession in lieu of her dower and that after the death of Ali Azhar she got her name mutated on 11th June 1907 in lieu of her dower debt in respect of the zamindari property left by Chaudhri Saiyed Ali Azhar. She said that the daughters and the son of Ali Azhar were minors at the time of Ali Azhar's death and she was their natural guardian and she supported them out of the profits of the property left by Ali Azhar. She said that she had not executed any deed of gift in favour of Muhammad Muzhar nor did she ever put him in possession of the property and that her dower debt had not been paid so far. The document dated 12th July 1924 (the deed of gift) was alleged to be entirely unlawful inasmuch as she did not execute the same nor did she affix her thumbs impression to any document understanding its nature and consequence. Mt. Anwar Fatma Bibi, defendant 2, by her written statement supported the case put forward by the plaintiffs. The subsequent transferees, defendants 4 to 8, pleaded that they had taken the transfers from Mt. Ansar Fatma Bibi and Muhammad Mazhar after due enquiry and in the bona fide belief that the transferors were the ostensible owners of the property. Section 41, T.P. Act, was therefore pleaded in defence. The principal contesting defendant had also pleaded the bar of 12 years' and 3 years' limitation.
6. It will thus appear that on the pleadings of the plaintiffs and the contesting defendant Mt. Fatima Sughra Bibi, one principal point arose in the case, and the learned Judge of the Court below gave effect to it by framing the following two issues:
(1) Was Ali Azhar the owner of the properties to which the suit relates, at the moment of his death? If not, did he lose the ownership thereof by an oral gift to his wife Ansar Fatma defendant 1? (2) Was defendant 1 in possession of the properties in dispute at (after) her husband's death in lieu of her dower, if there was no oral gift to her by the husband?...
7. On behalf of the plaintiffs it was asserted that Mt. Ansar Fatma Bibi got her name recorded in the revenue papers for facility of management, and in the alternative it was said that if it be assumed that she was in possession of the property in lieu of her dower, then the dower debt was satisfied, and in either case the plaintiffs were at the time of the institution of the suit entitled to possession of 21/48 sihams. It was pleaded on behalf of the contesting defendant that Ali Azhar divested himself of the property during his lifetime and made an oral gift of the entire property in favour of his wife. There was no other case set up by the parties, and we have got to record our finding on the case as presented by the parties, and the evidence in the case has got to be looked at with a view to finding as to whether the plaintiffs or the defendants are correct in their allegations. Other issues on the question of the deed of relinquishment dated 3rd June 1924 and the deed of gift dated 12th July 1924 were also framed. Issues as to whether the dower debts had been satisfied or not and as to whether the suit was barred by limitation and by Section 41, T.P. Act, were also struck.
8. The learned Civil Judge was of the opinion that Ali Azhar was not the owner of the properties to which the suit related at the moment of his death and that he had lost the ownership thereof by an oral gift to his wife, Mt. Ansar Fatma Bibi, defendant 1. He then went on to say that the above finding rendered the rest of the issues superfluous, but if it was necessary to come to a finding as to whether the plaintiffs did or did not execute the deed of relinquishment dated 3rd June 1924 he had not the slightest hesitation in finding that they did execute it. Finally, he said that if it had been necessary to come to a finding as to whether the suit was barred by limitation, he would have held that it was barred by three years' limitation under Article 91, Limitation Act, and that if it had been necessary to come to a finding as to whether the suit was barred by Section 41, T.P. Act, it would have been in the affirmative. There has been some discussion in the judgment as regards the deed of relinquishment, and the finding, whether right or wrong, can be said to have been arrived at after some consideration, but as regards the findings on limitation and Section 41, T.P. Act, the grievance of the appellants is legitimate that those findings are no findings in law, because the learned Civil Judge only says that he would have held that the suit was barred by three years' limitation and he would have held that the suit was barred by Section 41, T.P. Act. It might be mentioned that the mutation case started by Mt. Sughra Bibi after the death of Muhammad Mazhar was pending at the time when the present suit was instituted on 30th May 1930, but it ended in favour of Mt. Sughra Bibi on 21st July 1930.
9. After having cleared the ground to a certain extent, we propose to discuss the principal issue that arises in the present case, and it is with respect to the nature of Mt. Ansar Fatma Bibi's possession of the property, for it is common ground that she had got her name mutated in the revenue papers after the death of Chaudhri Ali Azhar. In answer to certain interrogatories Saiyed Hasan Ali stated that Chaudhri Saiyed Ali Azhar made a gift of his property to his wife Mt. Ansar Fatma Bibi ten or twelve days before his death and put her in possession of the same, that is the gift was made in the month of February 1907. The gift was made in the presence of Chaudhri Ghulam Haider, Jawad Husain and Hasan Ali, and the other members of the family, that is the ladies, and Ali Azhar admitted before Mukhtar Ali and others that he had made the gift. (At p. 30 in Section 1 the name is printed as Iftikhar Ali but it is a mistake and should be corrected.) Mt. Ansar Fatma Bibi entered into possession during the life-time of Chaudhri Ali Azhar, who gave directions to his servants that Mt. Ansar Fatma Bibi was then the owner and that they should hand over the collections to her and carry out the directions given by her. He also said that mutation of names had been effected in favour of Mt. Sughra Bibi recently. Ghulam Haider and Jawad Husain are dead, so that apart from Hasan Ali there is really, according to him, no other witness of the making of the oral gift, if we exclude the ladies and the admission made before Mukhtar Ali. In his evidence he added another name Hamid Husain and said that he too was present at the time when Ali Azhar made the gift to his wife.
10. Hamid Husain, we are informed, is alive, but he has not been produced. Only two witnesses, Hasan Ali and Mukhtar Ali have been produced to prove the oral gift. Hasan Ali, as we mentioned before, is the father and general attorney of Mt. Sughra Bibi and is vitally interested in the defence. He says:
Twelve-thirteen days before his death, Ali Azhar made a verbal gift of his property to his wife Ansar Patma. Ansar Fatma accepted and consented to the gift. A mutation of names was made on this gift...Ali Azhar was in good health at the time he made the verbal gift. He addressed his wife with the words that he had given his entire zamindari and house property to her and given her possession of it and made her the 'malik' of the whole of it and that she was at liberty to deal with the property in whatever way she liked.... Ali Azhar told his servants that he made the gift to his wife and directed them to carry out the donee's directions about the property.... At the time when the verbal gift was made there was no talk of dower.
11. It might be mentioned that Ali Azhar was a resident of Manjhanpur. The gift itself is said to have been made at Mawi, which is at a distance of one mile from Manjhanpur, and where Ali Azhar had gone, because there was plague at Manjhanpur. Hasan Ali is a resident of Agiona which is at a distance of about five or six miles from Mawai, and it is a bit curious that Hasan Ali should have gone from his village to Mawai, for it is to be remembered that by that time his daughter had not been married to Ali Azhar's son, and the only relationship that existed between Hasan Ali and Ali Azhar was that the latter's wife was the daughter of Hasan Ali's father's phuphi. There is some controversy as to the age of Ali Azhar at the time of his death, because according to Hasan Ali he was 55 or 56 years old at his death and according to Mukhtar Ali, another witness on behalf of Mt. Sughra Bibi, Ali Azhar was only 30 or 35 years old at the time of his death. We hold the view that Hasan Ali has exaggerated the age, because he says in cross-examination that he could not say as to when Ali Azhar's marriage took place nor could he say when his children were born. These lapses of memory are probably due to the fact that Ali Azhar was much younger than what is represented by Hasan Ali, and Hasan Ali wanted to conceal the date of Ali Azhar's marriage and also the date when his children were born. Mt. Ansar Patma, the widow of Ali Azhar, has been examined in the present case, and she gives her age on 28th May 1933 as 58. She was therefore 32 in 1907 when Ali Azhar died, and it is not likely that there should have been such a disparity between the ages of the husband and the wife. According to Hasan Ali the ages of the children at his death were 7/8 years, and even if it be assumed that the eldest child was about 10, it is hard to believe that Ali Azhar got his first child at the ago of 45 or 46. It is more likely that Ali Azhar was about 35 or a trifle more when he died and Mt. Ansar Patma was about 32. Under these circumstances it was unlikely that Ali Azhar should think of making a complete gift of his entire property in favour of his young wife who might after all have remarried after Ali Azhar's death and got other children by the second husband and who might also have disposed of the property in a way not conducive to the best interests of the family.
12. According to Hasan Ali, Ali Azhar was quite well when he made the gift 12 or 13 days before his death, but it is not disputed that the gift was made at Mawai where the family had taken shelter owing to the prevalence of plague at Manjhanpur, the residence of Ali Azhar, and that Ali Azhar did die of plague on 4th March 1907. Ali Azhar was religiously minded and in spite of plague in his village he used to come to Manjhanpur from Mawai almost every day to hold majlises even though people would not come to the gathering for fear. According to Mt. Ansar Patma Bibi, Ali Azhar died of plague on the 18th of Moharram (4th March 1907) at Mawai after a short illness of four or five days. It is therefore more probable that if any directions were given by Ali Azhar regarding his property, they were given not at a time when Ali Azhar was in good health but at a time when he had some apprehension after having got an attack of plague. According to Hasan Ali, Ali Azhar named the different villages, mahals, pattis and shares which belonged to him and had called Hasan Ali to the zannana portion of the house where he was staying.
13. Hamid Husain, before whom the gift is said to have been made, has not been produced. None of the servants or karindas to whom, according to Hasan Ali, directions were given to follow the instructions of the donee were produced, but Mukhtar Ali before whom Ali Azhar is said to have admitted the above gift (according to the answer of Hasan Ali to the interrogatories) was produced. Syed Mukhtar Ali is a resident of Manjhanpur and in his deposition he says:
Ali Azhar gifted his property to his wife. I was sitting outside and the Chaudhri Sahibs were inside; the Chaudhris were Ghulam Haidar, Ali Azhar, Jawad Husain, Hamid Husain and Hasan Ali. The Chaudhris and Ali Azhar came out and Ali Azhar said in a loud tone that he had gifted his property to his wife Ansar Patma and made her malik and qabiz and dakhil. He gave his servants the direction that all his servants, tenants and the people in attendance should carry out her orders and pay her rents and said that he himself had no longer any concern.
14. He admits that he was not in Ali Azhar's service at that time but that he had gone to Mawai to give Ali Azhar the monthly instalment of Janki's theka money. He says that he was a servant of Janki who was a thekadar of Ali Azhar's share in Manjhanpur. He says that he had taken Rs. 125 to Ali Azhar at Mawai from Janki. No receipt for the payment of this theka money has been produced, and the witness says that Ali Azhar was not giving receipts for the theka instalments of money. Janki's account books were also not produced, and it is said that Janki was not keeping regular account books but was keeping notes on slips of paper to help his memory. The witness was not aware whether Janki had taken the lease under a patta in writing or verbally. There is no reason why Mukhtar Ali should have gone to Mawai from Man-jhanpur for the payment of the theka money when as a matter of fact Ali Azhar daily went from Mawai to Manjhanpur to hold his Moharram Majlises. Mukhtar Ali has been a witness for Mt. Fatma Sughra in her ten rent suits against tenants for the purpose of verifying rent receipts which had been filed in the mutation case. Zulfi-qar Husain, the husband of one of the plaintiffs, has filed several cases for arrears of rent against him. He admits that Ali Azhar did not say that mutation application should be made, but said that his wife could make a mutation application when, ever she liked. Hasan Ali however says that when he made the gift, he told his wife to get mutation of names effected in her own favour. If the gift was made 12 or 13 days before the death of Ali Azhar, there is no reason why an application for mutation was not made during the life, time of Ali Azhar, because there is a tahsil at Manjhanpur, where a mutation application could be made as admitted by Hasan Ali. It is true, the learned Civil Judge heard Hasan Ali and Mukhtar Ali and his appraisement of their credibility carries great weight, but in spite of what he has said, we have grave doubts as to the presence of Hasan Ali and Mukhtar Ali at the time deposed to by them, for the reasons which we have already hinted at and for the reasons which will appear later. It is unlikely that Hasan Ali should have gone to Mawai when plague was raging in the adjoining village and when he had his own Moharram Majlises to attend in his own village.
15. Mt. Ansar Fatma was examined on commission and she says that Hasan Ali never went to Mawai during her husband's illness nor did Hamid Husain nor was Jawan Husain, her cousin, at Mawai then. According to her, Jawad Husain was at Malipur in connexion with his father's illness before Moharram and he did not come to Mawai before her husband's death and that Jawad Husain's father died at Malipur during the time Ali Azhar and his family were at Mawai. She further says that Mukhtar Ali never sent any money of bazar income while they were at Mawai and that Mukhtar Ali had ceased going to her place on account of Shia-Sunni disputes. Akbar Husain, son of Tasadduq Husain of Mawai, was produced on behalf of the plaintiffs, and he says that during; Ali Azhar's stay at Mawai he did not see-Hasan Ali. Akbar Husain, son of Paighamber Husain, resident of mauza Rampur Suhela, was also produced on behalf of the plaintiffs, and he says that he stayed for 12 days of Moharram at Mawai with Alt Azhar, because he was called from his own village to Mawai in order to give recitations at Manjhanpur majlises. He says-that during his stay he did not see Hasan Ali, Hamid Husain, Jawad Husain or Mukhtar Ali at Mawai. Ghulam Rasul, who is admittedly an old servant of Saiyed-Ali Azhar, says that 25 or 26 years ago Ali Azhar had come to Mawai from Manjhanpur on account of plague and his wife and children stayed in the zanana house of one Nazar Mohammad and he himself stayed in a baithak which belonged to Baqar Mian and other Mawai people. Hasan Ali or Hamid Husain or Mukhtar Ali did not visit Mawai while Ali Azhar was staying there nor did Jawad Husain visit Mawai during his master's stay. Sheikh Shamsuddin, an old legal practitioner, was examined on commission on behalf of the plaintiffs. He says that he used to be engaged as a counsel in the lifetime of Ali Azhar and his father, and there can be no doubt that he was a trusted legal practitioner of the family, for there is on our record at page 137 an application on-behalf of Mt. Ansar Fatma which was presented by Shamsuddin in a Revenue Court. He says that Ali Azhar was the sole proprietor of his property and he alone was in possession of all his property till, the time of his death. He never expressed his intention of gifting his property to his widow. He would have certainly known if he had so gifted his property. He says-that as far as he knew he could say with certainty that Ali Azhar made no gift of his property to his wife. The oral evidence, so far as it goes, is against the visit of Hasan Ali and Mukhtar Ali to Mawai, and the circumstances are against the theory of a complete gift of the entire property in favour of the wife. As we said before, the wife was young and she might have remarried and got other children who would have also inherited a portion of the property, and even if she did not remarry but died without making any proper arrangement in favour of her children, there was a possibility of a portion of the property going to some other heir of hers, like the father and the mother.
16. We now propose to consider as to what happened after Ali Azhar's death and on what representations the widow of Ali Azhar entered into possession of the property. The application for mutation which was made on 18th May 1907 (this appears from p. 175 of the record) is not before us, but the extracts from the register of mutation of names in respect of the various villages are printed at pp. 195 to 207 of our record, and in each of them, with the exception of two at pp. 205 and 207, the nature of the transfer is mentioned as "in another way under an oral will." It is of great importance that it is not said that the nature of the transfer was an oral gift. At p. 205 the nature of the transfer is given as "inheritance" and at p. 207 the nature of the transfer is given simply as being "in another way." Under Section 34, United Provinces Land Revenue Act, Local Act 3 of 1901, every person obtaining possession by succession or transfer of any proprietary or other right in a mahal has got to report such succession or transfer to the Tahsildar, and it is further provided in Sub-clause (4) that if the poison so succeeding or otherwise obtaining possession is a minor or otherwise disqualified, the guardian or other person who has charge of his property shall make the report required by the Section. The words "in another way" seem to be a paraphrase of the words "or otherwise" appearing in Clause 4. The nature of the transfer mentioned in the various extracts is some indication of the claim made by the widow when she applied for mutation. She did not say that she got the property by moans of an oral gift, and as mentioned before, the application for mutation of names was not made in the, lifetime of Ali Azhar, as indeed it might so have been made if the oral gift had been made in the way stated by Hasan Ali, for Manjhanpur had a tahsil of its own. If therefore the defendant had been the plaintiff in the litigation and had been founding her claim on the basis of an oral gift, the extracts above referred to would have struck a severe blow to her case. There is at p. 137 of our record an application by Mt. Ansar Fatma for correction of certain khewats and para. 2 of the said application is of some importance. It is stated there that under a will Saiyed Ali Azhar bequeathed his entire estate to the petitioner in lieu of dower debt and under it the petitioner made an application for mutation of names in respect of a 6 pie 15 krant share. This shows the nature of the pretension made by Mt. Ansar Fatima. In the application it is said that Ali Azhar had bequeathed his property to the applicant in lieu of dower debt. Hasan Ali says in his evidence before Court that at the time when the verbal gift was made there was no talk of dower.
17. Learned Counsel for the appellants attaches great importance to the statement contained in this application and says that this lends great support to the alternative case set up by the plaintiffs which was to the effect that the widow entered into possession of the property in lieu of her dower, and it may be that certain instructions were given by Ali Azhar shortly before his death to his widow in that direction. Learned Counsel for the respondent however contends that in para. 2 of the application above referred to, the widow alleged that Ali Azhar had bequeathed his entire estate to the petitioner, and this differs from alleging that Ali Azhar had given directions that the widow should enter into possession after his death in lieu of dower. His submission therefore is that if it be found that Ali Azhar did not make an oral gift of his property in his lifetime, he had made an oral will bequeathing the entire property to the wife in lieu of dower and that even on this latter case the plaintiffs will have no right of inheritance. It must however be remembered that the defendant did not set out this case in defence, and as pointed out by their Lordships of the Privy Council in Siddik Mohammad Shah v. Mt. Saran (1930) 17 A.I.R. P.C. 57 that where a claim has never been made in the defence, presented, no amount of evidence can be looked into upon a plea which was never put forward.
18. The defendant cannot be permitted to change her front. At the same time, it is the duty of the plaintiffs to prove that they are entitled to succeed on one of the two alternative cases set forth by them, for if they do not so succeed, the defendant who is in possession under the orders of the mutation Court is entitled to remain in possession. It was contended on behalf of the appellants that by the time the suit was instituted every party knew of the revenu papers of 1907, but nobody relied upon them. The case of will was deliberately and definitely given up by the defendant in her written statement, and in the answers to the interrogatories and in his evidence before Court, Hasan Ali never made a whisper about an oral will. Nor did the plaintiffs speak of the oral will. One of the plaintiffs, namely Mt. Izhar Fatma, wa,s examined on commission, and she says that her father never gifted his property to her mother nor did he make any bequest, but that the name of Mt. Ansar Fatma was mutated for convenience of management. It is true that she was only seven or eight years old when her father died, and her statement on this point can only mean that so far as she knows she never came to learn either of an oral gift or of an oral bequest.
19. Under the circumstances it is impossible for us in the state of the pleadings to come to a finding that Ali Azhar made an oral will of his property in favour of his wife. It is therefore not necessary for us to discuss the question of law whether a will by a Shia Mahomedan bequeathing his entire property in favour of an heir is invalid in in its entirety or is valid to the extent of one-third or is valid in its entirety under the circumstances of the present case. Sir Syed Wazir Hasan on behalf of the respondent argues that such a will is valid in its entirety, because under the circumstances of the case it is, in reality, the discharge of a debt. The widow was a creditor of Ali Azhar to the extent of Rs. 50,000, and under the Mahomedan law the payment of the funeral expenses and of the discharge of debts come before the opening out of the inheritance and the heirs take the property after the above two obligations have been met. When therefore Ali Azhar discharged his obligation of the dower debt by making an oral will in favour of his widow of the entire estate, the doctrine of law regarding the power of a Shia Mahomedan to make a bequest under certain limitations is not applicable. Mr. Peare Lal Banerji on behalf of the appellants however contends that a Shia Mahomedan cannot make a bequest to an heir of the whole of his property, and if he were to make such a bequest, it would be void completely unless the other inheritors gave their consent after the death of She testator. Several cases were cited by learned Counsel for the parties, and our attention was drawn to various text-books as well as to Hamilton's translation of the Hedaya. The question does not really arise, and we refrain from giving an opinion on the point beyond saying that the parties to the present litigation were aware of the difficulties if the case of an oral bequest was set up, and therefore they deliberately gave it up.
20. The mutation extracts and the application at p. 137 are however relied on by the appellants, and their contention is that if Ali Azhar had made a will of his estate as distinguished from a direction that the widow should take possession of the property after the death of her husband in lieu of dower debt, there was no necessity of the extracts speaking of the nature of the transfer as 'in another way', nor of the application at p. 137 speaking of the fact that the arrangement, whatever it was, was in lieu of dower debt. The nature of the transfer would have been mentioned in the extracts as 'under an oral will' with, out being qualified by the words 'in another way'. In several of khewats at pages 211, 215, 225, 233 and 249 the expression used is 'gift' pure and simple, and there is some force in the contention that the words 'in another way' qualifying the words 'under an oral will' suggest that it was not the case of a bequest conferring ownership on the widow. The words 'under a will Saiyed Ali Azhar bequeathed his entire estate to the petitioner in lieu of dower debt' also lend some colour to the appellants' case.
21. The suggestion is that the widow entered into possession of the property after the death of her husband for facility of management. There was nobody to protest, being the children were all minors below the age of ten. There was no disharmony and there could be none between the mother and the children. At the same time, it was well known that the widow could not create a lien in her favour by simply entering into possession and she could have been turned out by the children when they attained majority on the ground that they being minors had not consented and could not in law consent to the widow's possession. The widow therefore had to say that she had the consent of her husband for entering into possession before she could obtain a lien, and that is why, it is said, reference to an oral will was made. In Amanatunnissa v. Bashirunnissa (1895) 17 All. 77 it was held that:
If a Mahomedan widow entitled to dower has not obtained possession lawfully, that is by contract with her husband, by his putting her into possession, or by her being allowed with the consent of the heirs on his death to take possession in lieu of dower and thus to obtain a lien for her dower, she cannot obtain that lien by taking possession adversely to the other heirs of property to the possession of which they, and she in respect of her share in the inheritance are entitled.
22. In Hamira Bibi v. Zubaida Bibi (1916) 3 A.I.R. P.C. 46 their Lordships of the Privy Council at p. 588 say:
Her (a Mahomedan widow's) right however is no greater than that of any other unsecured creditor, except that if she lawfully, with the express or implied consent of the husband, or his other heirs, obtains possession of the whole or part of his estate, to satisfy her claim with the rents and issues accruing therefrom, she is entitled to retain such possession until it is satisfied. This is called the widow's lien for dower, and this is the only creditor's lien of the Musalman law which has received recognition in the British Indian Courts and at this Board.
23. We have already said that we do not believe the case put forward by the defendant that Saiyed Ali Azhar had made an oral gift of his property in his life-time and the contingency that presented itself before Mt. Ansar Fatma in March 1907 was that her husband had died and some arrangement had to be made about his estate and the best arrangement was that she should enter into possession of the property and there was no difficulty in such an entry, because there was nobody to oppose her, but she had to safeguard her own interests and she could not very well say that she had entered into possession lawfully and peaceably with the consent of her children, because such children being minors, were incapable of giving consent, and she had therefore to speak of some instructions given by the husband in order to obtain the right to remain in possession without interference by the children if they became ill-disposed towards her. What arrangement could she under the circumstances think of except that the husband had given instructions before his death that she should enter into possession in lieu of dower, and if she instructed her karindas, who instructed her counsel, to present an application on the above basis, it might well be that her statement in the course of transmission suffered mutilation and the idea which we find conveyed in para. 2 of the application at p. 137 is couched in the phraseology in which it is couched. After all there is no statement of the widow of 1907 before any Court of law nor is there her application for mutation even; all that we have got is an application in which a reference is made to her application for mutation of names, and it is upon the basis of this reference and upon the basis of the various extracts that we have got to come to some conclusion as to the truth or otherwise of the two alternative cases set forth by the plaintiffs.
24. When we come to another stage, namely when Muhammad Mazhar applied for mutation on the basis of the deed of gift dated 12th July 1924 we find that he stated before the Pargana Officer that his mother Mt. Ansar Fatma had been in proprietary possession and enjoyment of the estate in lieu of dower debt (p. 157). The central idea even here is that the widow entered into possession in lieu of dower. It is true that the words are 'proprietary possession', but after all a Mahomedan widow when she enters into possession of husband's estate in lieu of her dower, is for all practical purposes a proprietor. There was no point in 1924 to go on harping on the dower debt when, if the defendant's case is true, the dower debt had been extinguished in 1907 by the oral bequest. If she had become the absolute owner of the property, one would have expected both at p. 137 and at p. 157 words to the effect that the lady had become the absolute owner of the property. These words are not uncommon, and we find that in Mahabir Prasad v. Mustafa Husain (1937) 24 A.I.R. P.C. 174 at p. 1016, when their Lordships are referring to the terms of a registered deed entered into by the members of a Mahomedan family, the words used are "mutation in respect of the entire property should be got effected in favour of our mother as absolute owner in lieu of her dower, and the same words occur again at p. 1017 where the words are "our mother Mt. Azmatunnissa Begam has become the absolute owner of his entire assets" and later, on the same page the words are, "the said property came into my ownership and possession in lieu of dower debt."
25. We wish to emphasise that we are not called upon to decide as to whether there was an oral will or not, because if a case of an oral will had been set up by any of the parties, then it would have been the paramount duty of the person founding his claim on the oral will to prove the exact words used by the testator. In Mahabir Prasad v. Mustafa Husain (1937) 24 A.I.R. P.C. 174 mentioned before, their Lordships of the Privy Council say that upon a question whether an oral statement amounted to a will the greatest care must be taken and strict proof must be required. The Court must be made certain that it knows what the speaker said and must from the circumstances and from (the statement be able to infer for itself that testamentary effect was intended in addition to being satisfied of the contents of the direction given.
26. If therefore we had to find as to whether on the evidence an oral will had been established, we would have been compelled to come to the conclusion that an oral will of the entire estate had not been established the case of an oral gift not having been established, the case of an oral will of the entire estate also not having been established, it would not be very wrong to come to the conclusion that the only case that is loft after the process of elimination is the case set up by the plaintiffs in the very forefront, namely that the widow entered into possession for facility of management, in which case there is no difficulty so far as the main controversy between the parties is concerned and even if it be assumed that the widow entered into possession in lieu of dower pursuant to the instructions of her husband before his death, the position of the plaintiffs will not be materially affected. According to the averments in the plaint the dower debt was paid up in 1924, and in any event before the institution of the suit, but there has been no finding by the learned Civil Judge on that point, and we have not thought it necessary to remit any issue in order to find out as to whether the dower debt has been satisfied or not.
27. The plaintiffs' suit is a suit for possession against Mt. Sughra Bibi who must be taken to be in possession of the estate. Mt. Ansar Fatma is not laying any claim to the dower in the present litigation, and we cannot say that the plaintiffs are not entitled to a decree without their first paying anything to Mt. Ansar Fatma on the score of dower. We shall assume for the present that Mt. Ansar Fatma did make a gift in favour of her son Muhammad Mazhar in 1924, but it is clear that she did not transfer her dower debt and Mt. Sughra Bibi as the heir of Muhammad Mazhar can have no claim to the same. The suit of the plaintiffs, if it has to be decreed, has therefore to be decreed unfettered, without any condition as to the payment of dower. After a review of the entire evidence and the circumstances of the case we have come to the conclusion that the case of an oral gift has not been established and that the case of an oral will of the entire estate does not fall to be considered, for over and above the criticizm that we have already levelled against that case, we might also mention that it is extremely unlikely that the husband would have made an oral will of the entire estate in favour of his young widow for the reason that there was danger of diversion of the property. The two cases, namely that of the widow's entering into possession in lieu of dower and of her entering into possession for facility of management, remain, and on either of those two cases the plaintiffs are entitled to succeed unless there is some other legal bar to their success. This is a case where the plaintiffs claim possession according to their shares over the property left by their father, and such a claim cannot be defeated except by reason of some act of the father disinheriting the plaintiffs or some act of the plaintiffs themselves disentitling them from claiming inheritance or some other legal bar, like the bar of limitation. We have already held that the plaintiffs' claim cannot be defeated because of any act of their father. We shall now discuss whether there is any act of the plaintiffs themselves which would disentitle them from maintaining the suit, and it is strenuously contended on behalf of the respondent that by reason of the deed of relinquishment, dated 3rd June 1924, the plaintiffs' suit must fail.
28. We now propose to discuss this deed of relinquishment in some detail. The original of the document has not been produced, but only a copy from the registration department has been tendered in evidence, and on behalf of the appellants it was contended that the defendant had not laid the foundation for the production of secondary evidence. It appears that although the plaintiffs endorsed on the document the words 'not admitted,' there was no serious objection to the admissibility of the document. The Court below has put an exhibit number on the paper and on 29th July 1930 it wrote the words 'admitted against plaintiff' on the same. In any event, before us, however, strong objection was taken to the admissibility of the document. It was said on behalf of the defendant that the original was in the custody of Ejaz Husain, the husband of Mt. Anwar Fatma Bibi, defendant 2, and as the interests of that defendant were identical with the interests of the plaintiffs, the husband has not produced the original in spite of the fact that he was asked to produce the same. Under ordinary circumstances the original of the relinquishment deed ought to have come into the possession of Muhammad Mazhar, and after his death it should have been in the possession of his widow Mt. Fatma Sugfara Bibi. If the defendant had simply said that after the death of Muhammad Mazhar the document went into the possession of Muhammad Mazhar's mother matters might have stood on a different footing, but Hasan Ali says:
The original of the relinquishment deed is not in my possession or in Fatma Sughra's possession. It is in Ejas Husain's possession. Ejaz Husain was Muhammad Mazhar's legal agent. Muhammad Mazhar and his wife and his son went on a pilgrimage to Khurasan together with Ansar Fatma, and when Muhammad Mazhar was about to start, he gave all his papers into Ejaz Husain's custody, and entrusted him with the management of his estate and household affairs.... Three months before starting for Khorasan, Muhammad Mazhar came to stay in my house owing to cholera in his homo village.... Ejaz Husain and Jawad Husain, during the cholera epidemic, came to stay with Iqbal Husain of my village Agyauna...Muhammad Mazhar did not bring his collection of books and paporsinto my house during his stay. Muhammad Mazhar's things during his stay in Agyauna would be kept in Tajuddin's house, but Muhammad MiiKhar used to sit in my sitting room.... Tajoddiri was Mohammad Yusuf's grandfather and is dead. Mohammad Yusuf is my karindafrom Agyauna he (Muhammad Mazhar) went to Bhilkhn, via Manjhanpur and returned to Manjhanpur from Bhilkha, having spent a night there; from. Manjhanpur he then started for Khorasan, having made over his papers to Ejaz Husain and given directions for the management of his estate.... The estate papers were not listed, but the box: containing them was brought and Muhammad Mazhar told Ejaz Husain that the box contained all his estate papers and deeds: that is why I have stated that the deeds of relinquishment and gift arc in Kjaa Husain's possession. When the mutation cane consequent on Mohammad Mazhar's death was going on, I asked Ejaz Husain for the deeds and he humorously said they might be with the mother or the sisters of the deceased.
29. No other witness was produced in order to prove that the original of the relinquishment deed is with Ejaz Husain and even on Hasan Ali's deposition it is clear that he can only infer that the deed of relinquishment is with Ejaz Husain, because the box containing the said papers and deeds was given in the witness's presence to Ejaz Husain. The witness definitely says that a list was not prepared and he has only guessed that the box that was given to Ejaz Husain contained the relinquishment deed. It is true that a summons was sent to Ejaz Husain to produce the document, but similar summonses were sent to Mt. Ansar Fatma and all the daughters of Ali Azhar. From this it might well be argued that at best the defendant had not the document and was of the view that it might be with Mt. Ansar Fatma Bibi and those connected with her, and if that be so, then the entire evidence of Hasan Ali regarding the document being in the possession of Ejaz Husain and the circumstances under which Ejaz Husain came to possess the document is false. There is some force in this contention and ordinarily one would expect that Muhammad Mazhar would trust his father-in-law with an important document like this. There cannot be the slightest doubt that before his departure to Khorasan he had come to Agiona to his father-in-law's place, and as Muhammad Mazhar knew that his father-in-law was mainly instrumental for the coming into existence of the relinquishment deed, he (Hasan Ali) was the best person to be entrusted with the same. Ghulam Rasul has been produced on behalf of the plaintiffs. He, as we said before, is an old servant of the family and he admittedly went to Khorasan with the party, and according to him Muhammad Mazhar before leaving the Manjhanpur house on account of plague for Agiona had made up his mind to go on pilgrimage and had taken all his things to Agiona. He says:
When they left Agiona they took with them only those things which they required in the pilgrimage and left the rest of the goods behind at Agiona. Locked boxes had been carried from Manjhanpur to Agiona.
30. This seems more natural, and if this evidence is to be believed then Hasan Ali would have the original of the document in his possession. The plaintiffs say that the original of the document has not been produced because it would have shown that a forgery was committed in connexion with the document. They deny their signatures and thumb-impressions on the document; they allege that they are illiterate women and if any document exists which contains their thumb-impressions, then those thumb-impressions were taken either on a blank paper or on a document with the representation that it was required for being filed in Court. They say that all these facts would have been made quite clear if the original document had been produced, and that is the reason why Hasan Ali, the pairokar of the contesting defendant, is not producing it. It is also said that very perfunctory attempts were made to produce Ejaz Husain along with the document; beyond the summons nothing else was done, although under the Code of Civil Procedure provision is made for compelling a witness to produce a document by the issue of a warrant. We might have felt inclined to attach a great deal of importance to this argument, if the admissibility of the document had been seriously contested in the Court below. As it is, some evidence was given as to why the original could not be produced and that reason appealed to the Court below, which admitted the document in evidence against the plaintiffs. We are therefore not prepared to hold that the registered copy is not admissible under Section 15, Evidence Act.
31. The question then arises as to whether the mechanical execution of the document by the executants has been proved. On behalf of the defendant it is contended that the document is not such as is required by law to be attested, and therefore it was not necessary for the defendant to produce the attesting witnesses. If secondary evidence is admissible under Section 65, Evidence Act, then under Section 89 of the same enactment the Court shall presume that every document mailed for and not produced was attested, stamped and executed in the manner required by law. This assumes of course that Ejaz Husain had the document. It is true that he was called for and that he did not produce it after notice to produce it was sent to him. It is very difficult to come to a definite finding on the evidence in the case as to whether Ejaz Husain is siding with the plaintiffs or the defendants. There is a great deal of oral evidence to the effect that Ejaz Husain is siding with the defendant, that there is enmity between Ejaz Husain and the plaintiffs and that Ejaz Husain's sson is betrothed to Hasan Ali's daughter. On the other side, it is said that Ejaz Husain is siding with the plaintiffs and that the interests of his wife and the interests of the plaintiffs are the same. Be that as it may, we are not prepared on the evidence to come to a definite conclusion as to whether Ejaz Husain is in the plaintiffs' camp or in the camp of the contesting defendant. We know that defendant 2 did not join with the plaintiffs in the filing of the suit, but we also know that she filed a written statement which tallies with the plaintiffs' case. It is unfortunate that the original of the document has not been produced and the misfortune naturally is to the advantage of the plaintiffs.
32. There are as many as eleven witnesses to the relinquishment deed but only one of them, namely Hasan Ali, has been produced. The scribe of the document has not been produced nor has the Sub-Registrar who registered the document. The witnesses who identified the executants before the Sub-Registrar have also not been produced. Three of the witnesses are dead, but the remaining eight, the scribe and the identifying witnesses are alive and none have been produced. The plaintiffs have produced as many as four of the attesting; witnesses and on behalf of the defendant only Hasan Ali was produced. (After stating the evidence of certain witnesses their Lordships proceeded.) All this evidence shows that a relinquishment deed with the signatures of most of the attesting witnesses was executed at Manjhanpur, but in the absence of the original, which is really unfortunate for the defendant, so far as the mechanical execution of the document is concerned, we have to rely on the testimony of Hasan Ali. There can be no doubt that after the death of Mohammad Mazhar if the property were to come to Mt. Sughra Fatma Bibi, the property would run the risk of being deviated into other channels.
33. It is argued that in the year 1924 everybody connected with the family was actuated with the laudable desire of allowing the property to remain intact in the hands of Mohammad Mazhar, the only son of Ali Azhar, instead of frittering it away by dividing it into several shares and, as such, the deed of relinquishment was executed and later Mt. Ansar Patina executed a deed of gift in favour of her son, but now that the son is dead and the bulk of the property comes into the possession of Mohammad Mazhar's widow, the sympathies of relations of the family have been alienated and they do not want the property to go to Mt. Sughra Bibi and her heirs, and for that reason the defendant was handicapped and could not produce the attesting witnesses of the document, for, if they had been, produced, they would have deposed not very much in support of the relinquishment deed. It is said that the argument on behalf of the appellants that the best evidence available in the case was not produced loses its strength, because that" evidence ordinarily would have not been favourable to the defendant, as indeed the plaintiffs by their conduct in producing some of the attesting witnesses have demonstrated. We appreciate the misfortune of the defendant, and for that reason we are prepared to hold that the solitary testimony of Hasan Ali proves perhaps the mechanical execution of the document by the girls. There can be no doubt that a number of persons assembled at the house of Mohammad Mazhar - this is clear from the statement of Ali Akhtar, a witness for the plaintiffs referred to above - and that a document was executed on 3rd June 1924. It is hard to believe that there was a conspiracy in which as many as nine or ten persons joined, more particulary when we find that Jawad Husain, the father-in-law of one of the daughters, and his son Bjaz Husain, along with Mohammad Hussain, the sister's husband of Mt. Ansar Fatma, figure therein.
34. We might mention that one of the plaintiffs who has been examined in the case, namely Mt. Izhar Fatma, says that she and her sisters are illiterate and that they cannot sign their names. Mt. Ansar Patma, the widow of Ali Azhar, also pleads ignorance about the relinquishment deed, and Mt. Anwar Fatma, a daughter of Ali Azhar, in her written statement denies having affixed her thumb-impression to any document after having understood its contents. At the same time, we find it very difficult to believe that the thumb-impressions and the signatures of the daughters of Ali Azhar were forged on this document and the scribe, the attesting witnesses and the identifying witnesses were either privy to and actively engineered this forgery or were hood-winked and deceived. It is not enough however for the defendant to show that the plaintiffs put their thumb-impressions or their signatures on the document. In the case of a pardanashin lady, the law places a very heavy burden on those who found a claim on the document executed by her. In Kali Bakhsh Singh v. Ram Gopal Singh (1913) 36 All. 81, their Lordships of the Privy Council at page 89 say:
... the law throws around her (a purdanashin lady) a special cloak of protection. It demands that the burden of proof shall in such a case rest, not with those who attack, but with those who found upon the deed, and the proof must go so far as to show affirmatively and conclusively that the deed was not only executed by, but was explained to, and was really understood by, the grantor. In such cases it must also, of course, be established that the deed was not signed under duress, but arose from the free and independent will of the grantor.... The rule of law that a gift cannot stand unless it is proved that the lady had independent advice is not an absolute rule of law. The possession of independent advice, or the absence of it, is a fact to be taken into consideration and well weighed on a review of the whole circumstances relevant to the issue of whether the grantor thoroughly comprehended, and deliberately and of her own free will carried out, the transaction.
35. In Sri Kishan Lal v. Kashmiro (1916) 3 A.I.R. P.C. 172 at page 1247, their Lordships of the Privy Council observed as follows:
Mt. Kashmiro (she was a Hindu purdanashin lady) cannot be regarded as an assenting party to any arrangement for the division of the property which was left by Lala Harnam Das. The question in such a case as this is not whether Mt. Kashmiro knew what she was doing, had done, or proposed to do, but how her intention to act was produced; whether all that care and providence was placed round her as against those who advised her, which from their situation and relation with respect to her they were bound to exert on her behalf. Fraud, such as it was in this case, cannot be condoned unless there be full knowledge of the fact and of the rights arising out of those facts, and the parties are at arm's length.
36. In Mt. Faridunnissa v. Mukhtar Ahmad (1925) 12 A.I.R. P.C. 204 their Lordships of the Privy Council at p. 710 observed as follows:
The law of India contains well-known principles, for the protection of persons who transfer their property to their own disadvantage, when they have not the usual means of fully understanding the nature and effect of what they are doing.... The case of an illiterate purdanashin lady, denuding herself of a large proportion of her property without professional or independent advice, is one on which there is much authority. Independent legal advice is not in itself essential.... The real point is that the disposition made must be substantially understood and must really be the mental act, as its execution is the physical act, of the person who makes it.... Again, the question arises how the state of the settlor's mind is to be proved. That the parties to prove it are the parties who set up and rely on the deed is clear. They must satisfy the Court that the deed has been explained to and understood by the party thus under disability, either before execution, or after it under circumstances which establish adoption of it with full knowledge and comprehension...the whole doctrine involves the view that mere execution by such a person, although, unaccompanied by duress, protest or obvious signs of misunderstanding or want of comprehension, is in itself no real proof of a true understanding mind in the executant. Evidence to establish such comprehension is most obviously found in proof that the deed was read over to the settlor and, where necessary, explained.... The extent and character of the explanation required must depend on the circumstances.... On the other hand, the doctrine cannot be pushed so far as to demand the impossible. The mere declaration by the settlor, subsequently made, that she had not understood what she was doing obviously is not in itself conclusive. It must be a question whether, having regard to the proved personality of the settlor, the nature of the settlement, the circumstances under which it was executed, and the whole history of the parties, it is reasonably established that the deed executed was the free and intelligent act of the settlor or not. If the answer is in the affirmative, those relying on the deed have discharged the onus which rests upon them. Of course fraud, duress and actual undue influence are separate matters.
37. Their Lordships then discussed the circumstances of that particular case and in the end say:
The conclusion that they have failed to discharge the burden of proof is one arrived at not out of any consideration for this lady in particular but in defence of those strict rules which have boon laid down for the protection of the defenceless in India, and it is a matter of obligation upon their Lordships to be strict and unwavering about it.
38. In Nibaran Chandra Mukerji v. Nirupama Debi (1921) 8 A.I.R. Cal. 131 their Lordships of the Calcutta High Court after reviewing certain cases say:
On examination these decisions will be found to fall broadly into two groups, namely first, cases whore the person who seeks to hold the lady to the terms of her deed is one who stood towards her in a fiduciary character or in some relation of personal confidence; and secondly, cases where the person who seeks to enforce the deed was an absolute stranger and dealt with her at arm's length. In the former class of cases, the Court will act with great caution and will presume confidence J put and influence exerted; in the latter class of cases the Court will require the confidence and influence to be proved intrinsically. This is a fundamental distinction which does not appear to have been always kept in view, with the result that observations made in the one class of cases have been applied without scrutiny to the other class of cases.
39. Bearing the observations contained in the cases mentioned above (which we have selected out of the several cited at the bar), we find that the case before us belongs to the class where the person who seeks to hold the lady to the terms of the deed stands towards her in a relation of personal confidence. It is true that at the present moment Mt. Sughra Bibi is the person who is relying upon the document, but we know that the document was between the children on the one hand, and the mother on the other hand. It is stated on behalf of the respondent that it was most natural that the mother should have desired that the whole of the property without any division should go to her son, but if that was so, the mother by reason of her relationship wan in a position to influence the will of her daughters. It is conceded that like dead of relinquishment and the deed of Mi ft subsequently executed in July 1924 ware part and parcel of the same transaction, and if that was so, it is clear that some time in 1924 Mt. Ansar Fatma was impelled by the controlling idea that some arrangement should be arrived at under which the position of Mohammad Mazhar as the sole and undisputed owner of the property might be made secure. For all practical purposes, the present case must therefore be taken as a transaction between a mother and her purdanashin daughters and a very heavy burden lies on those who rely on the document, heavier than what the law would ordinarily lay on a person who was a stranger to the purdanashin lady and who was dealing with her at arm's length. It was absolutely necessary to explain the origin of the transaction and to tell the Court as to how the daughters were also actuated with the desire to benefit their brother beyond merely saying that it was brought about by feelings of affection and sacrifice which always find a place in the human breast.
40. What is the evidence tendered by the defendant in order to prove this aspect of the case? We have summarized this evidence when we gave a resume of Hasan Ali's deposition. We have already rejected the other witness, Habibullah, and we shall bear in mind what Hasan Ali has said on this point, but it must be remembered that we have to take the word of Hasan Ali with some caution, for he is a ubiquitous and omniscient witness. He was present at Mawai in February 1907 when the oral gift is said to have been made by Ali Azhar in favour of his wife, though, as we have mentioned before, it is difficult to assign any reason for his presence there; he was present in June 1924 when the deed of relinquishment was executed and again in July 1924 when the deed of gift was executed at Manjhanpur. He was present again at Manjhanpur when the deed of relinquishment and the deed of gift were handed over to Ejaz Husain; and finally in Court as the general attorney of the contesting defendant in the present litigation was actively prosecuting the case on her behalf. He deposes to all the facts which serve as links in the chain of the case set up by the contesting defendant. He took up the reins of management on behalf of Mt. Sughra Fatma after the death of Mohammad Mazhar as is clear from the judgment in the mutation case of Fatma Sughra Bibi v. Chaudhri Mohammad Mazhar, printed in the paper-book at p. 179. Mt. Ansar Fatma, the person in whose favour the deed of relinquishment was executed, says in her written statement and her evidence on commission that she knew nothing, that she never got the deed executed in her favour, never presented such a deed for registration before the Sub-Registrar nor was such a deed ever read and explained to her daughters and that Hasan Jan, Mukhtar, or Jawad Husain or Ejaz Husain never read or explained such a deed to her daughters, who are illiterate and who cannot write. But, even if we ignore the statement of Mt. Ansar Fatma and the plaintiff Mt. Izhar Fatma on the point, we have still to see whether the burden, which rests on the defendant, has been discharged by her.
41. The deed of relinquishment starts by reciting that before his death Ali Azhar made a gift of the entire property in his possession to Mt. Ansar Fatma Bibi, because Rs. 50,000 was due by Saiyed Ali Azhar, deceased, to Mt. Ansar Fatma on account of her dower debt. We have already discussed in an earlier stage of our judgment the evidence on the point of the oral gift and we have come to the conclusion that the evidence is insufficient. Now, if as a matter of fact, no oral gift was made and if it was represented to the daughters either by the mother or by Hasan Ali or by any other person like Jawad Husain or Ejaz Husain that such a gift had been made, a fraud was perpetrated. If it was said, as appears in the document, contrary to the deposition of Hasan Ali, that the entire property was transferred to Mt. Ansar Fatma, because Rs. 50,000 were due by Ali Anhar as dower debt, then something ought to have been told to the daughters that a transaction like that might amount to a sale and a registered document would have been necessary, and before the girls relinquished their rights they should, realize their position clearly. In Mahabir Prasad v. Mustafa Husain (1937) 24 A.I.R. P.C. 174 at p. 1019, referred to above, their Lordships say:
Whether or not it was open to him in spite of death illness to make a gift to his wife of the whole of his estate in lieu of dower is a moot point.... Such a transaction, as the cases show, has been treated as a sale, in which view however a registered instrument would be necessary.
42. Whether a transaction by which Ali Azhar made an oral gift to his wife, because Rs. 50,000 were due by him as dower debt would be treated as a sale and required a registered document or not, the situation ought to have been explained to the girls, some of whom were undoubtedly young. The ages given at page 148 of our record as 32, 28 and 23 do not appear to be quite accurate, because the whole of the evidence shows that when Ali Azhar died in 1907 the eldest of his children was not more than ten, and in that view Mt. Anwar Fatma Bibi, who is put down as aged 32, would only be 27, and similar deductions have got to be made in the ages of the other girls. If an oral will was made, then again the difficulties of such a will ought to have been explained to the girls; such a bequest might be wholly void or might be valid to the extent of one-third or might be valid in its entirety, but nobody says that this position was explained to the girls. There can be no doubt that if any transaction took place in 1907 before the death of Ali Azhar either in the shape of an oral gift or in the shape of an oral bequest or only in the shape of certain instructions, Ali Azhar was unwell and he died from plague soon after (we refuse to believe Hasan Ali when he says that Ali Azhar was quite well when he made the oral gift and something ought to have been told the girls that the transaction might require consideration inasmuch as it might be affected with the doctrine of marzul maut.
43. It is said that the document is couched in ordinary language, easily intelligible even to illiterate and half-educated persons, and it is a simple and short document without any complexities. This is only partially true, and may be admitted; but we must have, before we uphold a transaction of this kind, some evidence as to how the intention was engendered in the minds of the girls about executing this deed of relinquishment. Were they told that they had no rights in the estate of their father and therefore the deed of relinquishment was only a formality and that as a matter of fact they were relinquishing nothing substantial but were only setting at rest some imaginary dispute that might arise in future or were they told that they had a right and, understanding the full import of that right, were relinquishing the same in favour of their mother so that the mother might subsequently benefit the son? According to Hasan Ali (p. 63, 1.33) there was no idea that the mother would gift the property to the son at the time the relinquishment deed was executed. Hasan Ali, beyond saying generally that the deed of relinquishment was read and explained to the daughters once by Hasan Jan, then by Jawad Husain and again by the Sub-Registrar, does not say how the different provisions of the document were explained to them.
44. There is no explanation whatsoever as to who was responsible for the instructions contained in the draft deed. The document being executed by the girls, one would have expected that there would be some evidence to show that they had given some instructions to somebody to prepare a draft on certain lines, but all that we know is that Ejaz Husain had gone to Allahabad to fetch Hasan Jan Khan, Mukhtar, and the latter arrived at Manjhanpur in Ejaz Husain's company with the prepared draft. For all we know the draft might have been prepared on instructions given by Hasan Ali or by somebody else who was not in a position to protect the interests of the girls.
45. When we come to the explanation of the various provisions we find that here again there is a complete dearth of evidence, be. cause the only explanation that on the evidence seems to have been given to the girls is that on execution of the relinquishment deed they would completely lose their share in the property that their father had left and would not get anything out of it and that all their rights would be extinguished. Habibullah says that he does not remember how the Sub-Registrar made that part of the document intelligible which says that the major heirs agreed to the gift by Ali Azhar to his wife, and Hasan Ali says (when his attention was drawn to this provision) that he could not say which major heirs were referred to in the draft at the transfer by Ali Azhar and that to his knowledge all the heirs were minors at the time of gift. The deed of relinquishment nays that at the time when the oral gift by Ali Azhar in favour of his wife took place, all the heirs, who were adults, agreed to it, and none of them raised any objection regarding her possession and the entry of her name and those who were minors did not offer any objection after they had attained majority. In spite of what has been said by Sir Syed Wazir Hasan on behalf of the defendant that the age of puberty among the Mahomedans is nine and that all that was meant by the word 'adult' in the relinquishment deed was that the girls who were above nine had agreed to it, we find that there is undoubtedly a wrong statement of fact contained in the relinquishment deed, when it is said that the adult heirs agreed to it, and there is a further wrong statement as regards the ages of the girls given at p. 148. Hasan Ali says that he cannot say in what words the Sub-Registrar explained the draft provision that Ali Azhar had made a transfer of his property to his wife because her dower debt was Rs. 50,000.
46. It is not necessary to labour this point any further. On the question of intelligent execution of the document after informing the ladies of their interests, the evidence is very perfunctory, and we notice that with various difficulties attending the possession of Mt. Ansar Patma after the death of Ali Azhar, it was absolutely necessary that the entire situation should have been clearly explained to the girls and their consent obtained thereafter. If the girls were making a gratuitous admission that they had no right in the property in the estate of Ali Azhar and that all their rights had been extinguished by reason of the oral gift, then there is nothing to prevent them from withdrawing the said admission, as pointed out by their Lordships of the Privy Council in Muhammad Imam Ali Khan v. Husain Khan (1899) 26 Cal. 81 at p. 100. According to Hasan Ali there was no idea of a deed of gift being executed by Mt. Ansar Fatma in favour of Mohammad Mazhar. If so, then all that the daughters were doing was to put the possession of the mother on a secure foundation, and they have no obligation not to withdraw the gratuitous admission made by them, even if it was so made.
47. If the daughters had some right in the property and they were relinquishing that right, it is a question of some difficulty whether that transaction could be effected by means of the relinquishment deed and a; regular conveyance was not necessary. The person relinquishing his right may be prevented from asserting it on the ground of estoppel, as might be inferred from the case in Latafat Husain v. Hidayat Husain (1936) 23 A.I.R. All. 573, but no regular; conveyance was drawn up, and if the principle of estoppel has to be invoked full understanding by the executants has got to be proved. Although independent advice, as pointed out by their Lordships of the Privy Council in Kali Bakhsh Singh v. Ram Gopal Singh (1913) 36 All. 81, is not absolutely essential, yet this is a case, where the person relying on the document is not a stranger dealing at arm's length with a purdanashin lady, but a mother. She was hardly a person who could advise the daughters properly. The daughters had been married, and although their gauna and rukshati ceremonies had probably not been performed, the husbands of two of the plaintiffs were living in Manjhanpur and were Mt. Ansar Fatma's neighbours, as mentioned by the learned Civil Judge in his judgment, and there is no reason why they should not have been asked to attest the deed or in any event why there should have been no evidence to show that they advised their wives in the matter. One would have expected that in a transaction of this kind, when the girls had been married, the husbands as their natural guardians or some members of the family of the husbands would have been consulted in the matter, and there would be some evidence to show that the girls had some advice from them in the matter. The document seems to have been executed with a studious attempt to prevent the husbands of the plaintiffs from acquiring any knowledge of it, and we are supported in what we are saying by the fact that when the mother, Mt. Ansar Fatma, comes to execute the deed of gift, it is attested by Syed Ali Athar, the husband of plaintiff 3, but mention of the deed of relinquishment is scrupulously avoided in the document. This also is a circumstance which is of importance bearing on the case.
48. We have left for the last the case in Mt. Oodey Koowur v. Mt. Ladoo (1869-70) 13 M.I.A. 585, where their Lordships of the Privy Council at p. 598 say as follows while considering the effect of a document:
If that is to prevent her recovering the property now in question, it must do so either because it operated, as a conveyance or as a contract to convey the interest which she now claims, or because it operated by way of estoppel. There is no other way in which it can operate. Now, did it operate either as a conveyance or as a contract to convey the interest to which she has now become entitled as heir of her son? Their Lordships are of opinion that it is quite impossible that it could so operate, and that for two reasons; first, because at the time when she presented this petition she had not in fact any interest in the property at all, and certainly had not become entitled to any interest as the heir of her son who was at that time alive, and in the next place, there is not the least reason to suppose that in the petition she in any degree contemplated a conveyance of any such right. That was not the right which they were then considering at all. The main object of the petition was simply to enable the redemption suit to go on, and to enable the persons who had begun it as plaintiffs - Oodoy Koowur and Sheo Lal - to carry it on. There was nothing in the language and nothing in the position of the parties which could lead any one to suppose that she had any interest that she might hereafter acquire as heir of her son, in her contemplation at all. On these grounds, it appears quite impossible that it can operate either as a conveyance or as a contract to convey her subsequently acquired interest. Well, now, is she in any way estopped? It is very difficult to see how she can possibly be estopped. There has been a difference of opinion among the learned Judges in the Court below as to the construction of this instrument, - whether it ought to be construed solely as relating to her rights as guardian, and to convey them, and not to relate to the property at all? The language certainly, in some parts of it, does appear to refer very strongly to an interest as owner, and probably it may be that the meaning of the instrument rather refers to her supposed interest as owner, but it appears to their Lordships hardly necessary conclusively to decide upon the proper construction of this instrument, because, even assuming, that it does not refer to her interest as owner, that is to say, to her present interest as owner, and that she is assuming incorrectly that she has some interest as heir of her husband, their Lordships are of opinion, that her stating that, and professing to resign that in favour of Oodey Koowur, could not possibly in point of law, estop or prevent her from setting up her real right as heir of her son, when that right actually accrued. There is, in the first place, no consideration whatever for this conveyance of her particular interest; even if she had it, she receives nothing for it. Neither does Oodey Koowur act on any representation made by her, or alter her position in any way. There is no misrepresentation to Oodey Koowur of any sort or kind. Oodey Koowur was acquainted with the actual facts of the case, just as muoh as Musammat Ladoo was.
49. These observations apply with full force to the facts of the present case, although it might be argued that the bar of estoppel might to a certain extent be pleaded against the plaintiffs, and it might be said that Mt. Ansar Fatma altered her position by reason of the representations made by the girls, but Mt. Ansar Fatma does not plead that her position has in any way been altered; indeed she pleads ignorance of the transaction. On the totality of the circumstances we are of the opinion that it is impossible to uphold the document of 3rd June 1924.
50. In the above view, it is not necessary to discuss the deed of gift, but in order to make our judgment complete we might discuss that briefly as well. Here again, a copy and not the original was produced, and Hasan Ali is the witness who says that the original is with Ejaz Husain. Our observations regarding the deed of relinquishment on this point apply with full force to the deed of gift. Once again although Mt. Ansar Fatma denies that she executed any such document, mechanical execution might be assumed, but the evidence as to intelligent execution is to be found in the statement of Hasan Ali. When mutation was effected in favour of Mohammad Mazhar, the latter seated that Mt. Ansar Fatma had been in proprietary possession and enjoyment of the property in lieu of dower and she had now made an absolute gift of the same in his favour. From the mutation order it appears that Haider Husain, general attorney of Mt. Ansar Fatma Bibi, admitted that possession over the property made a gift of was made over to Chaudhari Mohammad Mazhar, but Haider Husain has not boon produced in the present case, and we are left to infer that Haider Husain acted on the instructions of Mt. Ansar Fatma. We have said all that it is necessary to say about the deed of gift, and even if it be assumed that Mt. Ansar Fatma made a gift of the property in favour of her son, Mohammad Mazhar, and Mohammad Mazhar since the execution of the deed of gift entered into possession of the property adversely to the rights of the other heirs of Ali Azhar, the position of the plaintiffs is not in any way prejudicial, because the suit was instituted in 1930 much less than twelve years before Mohammad Mazhar can be said to have started claiming adversely. Mohammad Mazhar did not obtain any transfer of the dower debt, and therefore ho and his widow cannot claim any lien to remain in possession of the property in lieu of the dower debt.
51. The learned Civil Judge seems to find support for his views from certain transactions that took place in the years 1923, 1926 and 1927, and this is a convenient place where we might discuss those transactions. On 8th February 1923, Mt. Ansar Fatma executed a mortgage of a portion of the property over which she was in possession in favour of Moulvi Syed Nabiullah, and on 9th February 1923 she executed a lease of the same property in favour of the said Syed Nabiullah, and it is said on behalf of the respondent that these transactions show that Mt. Ansar Fatma asserted that she was the owner of the property hypothecated and leased. The same is said about a mortgage made by Muhammad Mazhar on 13th April 1926. It is quite true that the property covered by these documents was the property of Saiyed Ali Mazhar, and in both these documents the executants represented themselves to be the owners thereof. These however have little bearing on the subject under discussion, for they cannot prove that there was an oral gift of Saiyed Ali Azhar to Mt. Ansar Fatma or that the plaintiffs relinquished their rights in favour of Mt. Ansar Fatma. We do not propose to pursue this question further, lest it should prejudice the parties on the issue of Section 41, T.P. Act, and our opinion might influence the Court below which will have to decide that issue under our present order. We content ourselves by saying that we cannot attach the same importance to these transactions as the learned Civil Judge seems to-have done. Then there is the plaint by Muhammad Mazhar and Ghulam Haider dated 27th July 1927. This was a suit by the above-mentioned persons against one Sia Das and was a claim as zamindars and owners of a certain grove for the issue of a permanent injunction restraining the defendant from doing any act which might affect the plaintiffs' right of ownership in the grove after a declaration that the plaintiffs were owners and in possession of the grove and for Rs. 100 as damages. A portion of the grove in question forms part of the estate of Ali Azhar, and it is said that. Ghulam Haider, who is the father-in-law of two of the plaintiffs, would not have joined Muhammad Mazhar in the suit if Mohammad Mazhar had not been the owner of the property. Ghulam Haider died during the pendency of the suit and his sons, the husbands of two of the plaintiffs, were brought on the record in his place, and once more it is said that these persons would have objected to the suit being continued with Muhammad Mazhar as a co-plaintiff. Muhammad Mazhar was a recorded cosharer, and by the litigation a trespasser was sought to be restrained and it was a matter of no consequence whether that restraint was obtained by the co-operation of a rightful person or not. Even if Zulfiqar Husain and his brother (the sons of Ghulam Haider) had made any such objection, the Court might very well have said that the objection was more or less improper and out of place in the subsequent proceedings for substitution of names. No inference adverse to the plaintiffs can be drawn from the quiescence of Ghulam Haider or his sons, and after having paid due regard to the observations of the Court below, we find that our opinion on the question of the alleged oral gift by Ali Azhar to Mt. Ansar Fatma and on the question of the deed of relinquishment by the plaintiffs is not in any way shaken.
52. This brings us to the consideration of the plea of limitation advanced on behalf of the defendant, and it is contended on her behalf that the suit is barred by 12 years' limitation and by 3 years' limitation under Article 91, Limitation Act. The Court; below has given no finding whatsoever on the question of the 12 years' limitation and has given a very cryptic finding on the question of the 3 years' limitation, for all that it says is that if it had been necessary to come to a finding as to whether the suit was barred by limitation, it would have held that it was barred by 3 years' limitation under Article 91. The submission on behalf of the parties, however, is that a question of limitation is a question of law and we ought to dispose of that question. We shall first consider whether the suit is barred by 12 years' limitation. If limitation begins to run from the deed of relinquishment, dated 3rd June 1924, or the deed of gift, dated 12th July 1924, the plaintiffs' suit is obviously within time, because only six years after the plaintiffs have brought the present suit. If the period between 1907 and 1924 had got to be taken into consideration, then we have the evidence of Mt. Ansar Fatma on the point in the following words:
I supported my children with the income of the property left by my husband. My daughters used to be benefited with the income of the above property. I performed the marriage and gauna of my daughters with the income of this property. My daughters lived with me till their gauna took place. After their gauna they lived with me for some time. They used to stay with me for three or four months and I used to support them. My daughters gave birth to their children in my house before their gauna. I bore all the expenses in connexion with these children's birth from the income of this property. After the gauna ceremony some children were born to my daughters in my house and I bore all the expenses in that connexion. My daughters never surrendered their rights in the property of their father in my favour nor did I ever ask them to do that.
53. There is on the record at p. 139 a mortgage deed executed by Mt. Ansar Fatma and Mohammad Mazhar in favour of Nabiullah which shows that Mt. Ansar Fatma was always supporting the daughters and spending money on their marriages. The evidence of the plaintiff Mt. Izhar Fatma is also to the same effect. It is therefore clear that Mt. Ansar Fatma never asserted any adverse right as long as she was in possession of the property. We have already said in an earlier portion of the judgment that the materials on the record are not sufficient to warrant the conclusion that Mt. Ansar Fatma asserted a definite adverse right when she applied for mutation. The deed of gift by Mt. Ansar Fatma in favour of Mohammad Mazhar is well within 12 years of the institution of the suit. There is no other evidence in the whole of this record from which we could come to the conclusion that the plaintiffs' suit is barred by 12 years' limitation.
54. Now coming to the question as to whether the plaintiffs' suit is barred by three years limitation, reliance is placed by learned Counsel for the respondent on Article 91, Limitation Act, and the Court below sought support for its view in Deo Singh v. Ram Dulaiya Judeo (1932) 19 A.I.R. All. 63. Under Article 91, Limitation Act, a person is entitled to cancel or set aside an instrument not otherwise provided for within three years from the time when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him. The question arises whether this document stands in the way of the plaintiffs when they claim possession, for if it does, then it is necessary for them to get it cancelled. It can stand in their way only if the document is a valid document and has to be avoided, but if the document is a void document, it is not necessary to avoid it or to get it cancelled, and in the; view that we have taken of this document; it is clearly a void document. In Nibaran Chandra Mukerji v. Nirupama Debi (1921) 8 A.I.R. Cal. 131 their Lordships of the Calcutta High Court observed as follows:
On the facts found, no question of limitation obviously arises. If we adopt the view that the deed actually executed by the lady was so fundamentally different from the deed she intended to execute and though she executed, it is void and inoperative. Article 91 of the Schedule to the Limitation Act has no application to a case of this description, where a suit is brought for possession, and partition upon declaration that an instrument under which the defendant claims is void.
55. A number of cases were given by their Lordships in support of the above view, and we entertain the same opinion.
56. There is yet another difficulty in the way of the defendant. The Article provides that the plaintiff will have three years from the time when the true facts become known to him. In the present case it is said on behalf of the plaintiffs that the true facts became known to them only when the mutation application was filed by Mt. Sughra Fatma in 1929 or 1930 and the suit was instituted on 31st May 1930, while the mutation application was pending. From the very nature of things it is impossible for the defendant to allege any other date for the knowledge of the plaintiffs except 3rd June 1924, and as we have stated before, the plaintiffs were not apprised of the true facts in June 1924. In Rahimbhoy Habibbhoy v. C.A. Turner (1893) 17 Bom. 341, their Lordships held that in order to make limitation operate when a fraud had been committed by one who had obtained property thereby, it was for him to show that the injured complainant had had clear and definite knowledge of the fact constituting the fraud at a time which was too remote for the suit to be brought. They said that the burden of proof was on the defendant to show that the plaintiff had such clear and infinite knowledge and on the facts of that case the burden had not been discharged. The same might be said by us so far as the present case is concerned.
57. For the reasons given above, we hold that the plaintiffs' suit is not barred by limitation. All the pleas raised by the principal contesting defendant have been answered so far, but there is a plea of the transferees under Section 41, T.P. Act. Here the finding of the Court below is absolutely unsatisfactory, for all that it says is that if it had been necessary to come to a finding, as to whether the suit was barred by Section 41, T.P. Act, it would have been in the affirmative. The trial Court does not even definitely say that the suit is barred by Section 41, T.P. Act. This question would require some discussion of the evidence, and learned Counsel for the appellants says that in view of the unsatisfactory nature of the finding he did not get such evidence printed an was relevant to the above issue and he insisted on an issue being remitted on the point. There is great force in the contention on behalf of the appellants, and if all the materials had been before us, we might have taken the trouble to arrive at our own finding on the question, unassisted by the judgment of the trial Court, but as all the evidence on this point has not been printed, we have no option but to remit an issue, and under Order 41, Rule 25, Civil P.C., we remit the following issue to the Court below : "Is the plaintiffs' suit, in respect of any portion of the property claimed, barred say Section 41, T.P. Act, and if so against which portion of such property?" The Court below is requested to submit its finding within four months from to day. No further evidence, is necessary, because the plea was definitely taken and parties were expected to produce the necessary evidence. On return of the findings the usual ten days will be allowed for objections.