MULANI Vs. MAULA BAKHSH

JUDGEMENT

(1.) The plaintiff seeks to set aside a deed of gift purporting to have been executed by her in favour of the defendant on the 11 of February, 1914. Her allegation was that the defendant practised fraud on the plaintiff and caused her to execute the deed of gift by the exercise of undue influence over her. The precise nature of the fraud was not specified, but it was alleged that certain misrepresentations had been made by the defendant to obtain her consent. It was further alleged that in spite of the deed of gift, the plaintiff had continued in possession of the house comprised in the gift.

(2.) The defendant denied that any fraud, undue influence or misrepresentation had been committed. He pleaded that ha had been in possession of the house from the date of the gift and spent Rs. 150 in making improvements of the house in question and paid Rs. 150 to Bulaqi Das who had purchased the rights of Musammat Aliman, the daughter of the plaintiff, who was found to be the joint owner of the said house with the plaintiff. There was a further defence that the deed in suit was really a sale for consideration cloaked in the form of a gift to defeat a claim for pre-emption.

(3.) The trial court found that the deed in question was nothing more than a gift without consideration and that it was executed under a misapprehension arising out of false promises made by the defendant and gentle persuasion exercised by him and was not consequently binding on the plaintiff. In the course of its judgment it observed that the plaintiff might be said to have been duped or misled but she could not be said to have been put under undue influence, and that the plaintiff had given preference to the defendant, who was a very distant relation of her husband, in disregard of the claim of her own brother, because the latter had been neglecting her and the former had been attending to her wants and comforts in her old age. In regard to the question of possession, the trial court came to the conclusion that the rent of the house tin dispute used to be paid to the plaintiff till very recently and that as long as the defend ant paid the rent realized from the house to her, she was quite pleased with the arrangement she had made, but when the defendant began to neglect her and stopped the payment of the rent to her, her eyes were opened and she sought the help of her brother in getting rid of the transaction. With reference to the other pleas raised by the defendant the finding of the trial court was that Rs. 150 had actually been spent in improvements and a similar sum in acquiring the rights of Bulaqi Das who had purchased the rights of Musammat Aliman, the daughter of the plaintiff. A decree was accordingly passed in favour of the plaintiff for the cancellation of the deed of gift and for the recovery of possession of her share of the house on condition of the plaintiff's paying Rs. 150 to the defendant on account of the improvements effected by the latter and Rs. 150 which the defendant had paid to Bulaqi Das for the share of her daughter, Musammat Aliman. 3. The defendant appealed and the plaintiff filed certain cross objections. The whole of the suit was in effect before the lower appellate court for determination; but the court confined itself to the question of limitation and without going into the various pleas raised on behalf of either side, came to the conclusion that Art. 91 of the Indian Limitation Act (No. IX of 1908) barred the claim.