AMIR ALAM Vs. BIBI SALMA

JUDGEMENT

(1.) This appeal by the defendant is directed against a decree of the subordinate Judge, Patna, declaring certain documents in operative and granting consequential relief.

(2.) The impugned documents purport to have been executed by one Mt. Bibi Ayesha in favour of the defendant-appellant. The defendant-appellant Amir Alam is the son of Ayesha's brother Akram. Plaintiff No. 1 Salma is the sister of Ayesha. Plaintiff no. 2 Afzal is the son of Ali Aslam, another brother of Ayesha. Ayesha died in September, 1943, leaving these three persons as her only heirs. The defendant became an orphan when he was aged about four years and was taken charge of by Ayesha, who had no children of her own. Ayesha's husband died about the year 1928 and since then the defendant has lived with her and has looked after her affairs. The impugned documents were executed by her when she was about sixty years of age and by then she parted with all her immovable property. Two of the documents are deeds of Hipa-bil-ewaz for a nominal consideration. The third is a sale-deed the consideration for which is stated to be Rs. 5,000/-. The case of the plaintiff is that Ayesha was induced to execute these deeds through fraud and undue influence, that she had no independent advice and did not understand what she was doing, that at best the documents represent fictitious transactions and no consideration passed. Also it was suggested that the documents are forged. The defence taken was that the documents are genuine, executed in due course and for consideration, and that the executant knew what she was doing and intended them to be effective documents.

(3.) There does not appear to have been serious attempt before the Subordinate Judge to establish the plea of forgery and the Subordinate Judge has not come to any clear finding thereon. In consideration of the relationship between the defendant and Mt. Ayesha, the Subordinate Judge placed on the defendant the onus of proof and formulated It to be to satisfy the Court."