MOHAMMAD HUSAIN KHAN Vs. MUSTAFA HUSAIN KHAN

JUDGEMENT

(1.) This appeal arises out of a suit instituted by Muhammad Husain Khan in order to recover one-ninth share in the property of his deceased brother, Sajjad Husain Khan, who died in the year 1934. The property in suit is described in four schedules. Schedule A includes immovable property which was admittedly owned by Sajjad Hussain Khan: Schedule B contains immovable property which was ostensibly owned by Mt. Sughra Bibi, the wife of Sajjad Husain Khan, but which, according to the plaintiff, was the property of Sajjad Husain Khan himself; the property in Schedule C is a scent manufactory at Jaunpur and the properties in Schedule D are certain articles of moveable property. When Sajjad Husain Khan died, he left surviving him his widow, Mt. Sughra Bibi, a son, Mustafa Husain Khan, three daughters and his father, Mira Bakhsh. The plaintiff rightly says that Mira Bakhsh was entitled under Mahomedan law to one-sixth of Sajjad Husain Khan's property. Mira Bakhsh died in the year 193G and the plaintiff claims that he inherited two-thirds of the property of Mira Bakhsh, the other third going to Mt. Wilayatan Bibi who was his sister and the sister of Sajjad Husain Khan. The plaintiff, therefore, maintains that he is entitled to one-ninth of the property left by Sajjad Husain Khan. The defendants alleged that Mira Bakhsh transferred his share in the properties mentioned in lists A, C and D to Mustafa Husain Khan, that half the property in list C had already been given by Sajjad Husain Khan to Mustafa Husain Khan before his death and that the property in list B was the property of Mt. Sughra Bibi and not of Sajjad Husain Khan. There was also one item of property in list B which was bought by Mt. Sughra Bibi at a sale in execution of a decree and it was alleged that the plaintiff was not entitled to claim this property because his suit in respect of it was barred under the provisions of Section 66, Civil P.C. The learned Judge held that Mira Bakhsh had made a gift of his share in the properties mentioned in lists A, C and D to Mustafa Husain Khan, that the property in list B belonged to Sajjad Husain Khan, and that the plaintiff was entitled to a share in it with the exception of the one small item which was purchased at a sale in execution of a decree. The learned Judge also held that half the property in list C had passed to Mustafa Husain Khan during the life-time of Sajjad Huaain Khan, but it does not seem that this is a question of any importance in the case. Muhammad Husain Khan has filed this appeal against the decision of the learned Judge of the Court below and there is a cross-appeal No. 164 of 1941 by Mustafa Husain Khan and ML Sughra Bibi about the property in list B, for which the learned Judge gave the plaintiff a decree. Mt. Wilayaten Bibi who was also a party to the suit has filed a cross-objection in Appeal No. 164 of 1941.

(2.) The main question which arises is whether Mira Bakhsh executed a valid deed of gift in favour of Mustafa Husain Khan. There is undoubtedly a document upon the record which was executed by him and duly registered. It is in the following terms: I, Mira Bakhsh Khan, son of Hasan Khan, resident of mohalla Bixvi Khan, Jaunpur City, do declare as follows: My eldest son, Sajjad Husain Khan, died on the 15 of March 1934, leaving the perfumery factory styled as Sajiad Husain Khan Abdul Karim Khan as well as other moveable property in cash and kind and cash certificates and household goods, etc., and the immovable property specified below, such as plots of land, houses and shops, etc., in which I have also a residuary share according to the Mahomedan law, which I do not want to take. The deceased, Sajjad Husain Khan, has left only one male issue, namely, Mustafa Husain Khan, and the entire property mentioned above is the self-acquired property of his father, Sajjad Husain Khan aforesaid, and I have not spent a single shell on it. I have become very old and there is no certainty of life. It is possible that after my death my other heirs may try to obtain my residuary share, that is, my share according to Mahomedan law from the property left by Sajjad Husain Khan deceased. Therefore, I, while in a sound state of body and mind, of my own will and accord, without compulsion or coercion, hereby relinquish my entire right and legal share in the estate of Sajjad Husain Khan deceased in favour of Mustafa Husain Khan, if lor my heirs bring any claim in future, the same shall be absolutely invalid and void. Hence I have executed these few presents by way of. a deed of relinquishment so that it may stand as authority and be of use when needed.

(3.) The question was raised in the Court below whether Mira Bakhsh was of a sound disposing mind and whether he had not been led to execute this document by the undue influence of his grandson, Mustafa Husain Khan, with whom he was living. The learned Judge found that Mira Bakhsh was of sound mind and that no undue influence was exercised upon him. The first question we have to decide is whether the learned Judge was right in these conclusions. We have heard the arguments of learned Counsel for the appellant and we see no reason for holding that the learned Judge was wrong. It is true that Mira Bakhsh was an old man and that he was partially blind, but the learned Judge has not accepted the evidence that his mind was affected in any way. We have been taken through the evidence and we see no reason to differ from the learned Judge who a had the opportunity of seeing the witnesses. The deed was registered before a Sub-Register to whom Mira Bakhsh Khan was personally known and it is impossible to believe that the Sub-Registrar would have registered the document if he had known that Mira Bakhsh Khan was not of sound mind. It appears from the endorsement of the Sub- Registrar that the execution of the deed was admitted by Mira Bakhsh Khan and as the Sub-Registrar made a note that the executants was then almost blind on account of old age, we are satisfied that he must have assured himself that Mira Bakhsh Khan, understood the contents of the document. As to the question of the exercise of undue influence there is really no evidence upon the record. We are asked to assume that there must have been undue influence from the fact that Mira Bakhsh was an old man, was nearly blind and was living with Mustafa Husain Khan. We do not think that! these circumstances justify any such inference. The result which Mira Bakhsh intended to produce was not one that was contrary to reason or good sense and we cannot assume merely from the fact of Mira Bakhsh's age and from the fact that ho was living with his grandson that he executed the document not of his free will but because Mustafa Husain Khan compelled or induced him to do so.