ASHIDBAI Vs. ABDULLA HAJI MAHOMED

JUDGEMENT

(1.) This is an action brought by Ashidbai, widow of Oosman Ahmed Bakhai, to set aside a document dated the 26 of February 1903 and for further reliefs, on the ground that it was obtained from her by means of fraud, misrepresentation and undue influence by Abdulla Haji Mahomed, the first defendant.

(2.) The property in dispute, which is situate at Soopari Bag, Parel, belonged to the plaintiffs husband. He died intestate in the year 1892, leaving him surviving as his next of kin and heirs, according to Mahomedan law, his widow (the present plaintiff), a daughter by name Zulekhabai (wife, since deceased, of the first defendant), and a sister by name Ashidbai, also since deceased. At the death of the plaintiff's husband the property was subject to several mortgages created by him on different occasions in favour of one Haji Ebrahim Tar Mahomed. A few years after his death the plaintiff and her daughter created further charges on the property. The daughter died intestate in 1901, leaving as her heirs her husband (the first defendant), two sons (the second and the third defendant, who are minors), two daughters, also minors (the fourth and the fifth defendant), and her mother (the plaintiff).

(3.) On the 26 of February 1903 the plaintiff and the first defendant executed the document (Ex. A) by which they relinquished their respective shares in the property in favour of the two minor sons of the first defendant, subject to certain terms and conditions. It is this document which is alleged to have been obtained by fraud and misrepresentation particulars of which are stated in the 10 para of the plaint. There the plaintiff alleges :- 10. About 18 months after the death of the plaintiff's said daughter Zulikhabai and shortly after plaintiff's return from Mecca where she had been on a pilgrimage for about 7 months the first defendant one day asked plaintiff to go to a Vakil's office with him, where he said he had got a document made making a proper "Bandobust of his own 6hare in the property for the benefit of his children and that the plaintiff's signature was necessary thereto as the head of the family. The plaintiff told the first defendant that she was an old woman and did not understand anything and he should not trouble her, but the first defendant said that it was all for the children's good that there would be no harm or trouble to the plaintiff, and that she had merely to sit quiet and sign the document when she was asked to do so, and ho himself would also sign the document. The plaintiff had great confidence in the first defendant at that time and relying upon the representations and assurances made as aforesaid, the plaintiff went with the defendant to a Vakil's office. The first defendant and some Parsee read from some document and talked amongst themselves. The plaintiff took no part in these proceedings, and until the first defendant asked her to put her mark upon the said document when she did so. The first defendant also signed the same. Hereto annexed and marked B is the copy of the said Document dated 26 February 1903 to which the plaintiff believes her mark was taken as aforesaid.