JAFAR ALI KHAN Vs. NASIMANNESSA BIBI

JUDGEMENT

(1.) This appeal has arisen out of a suit brought by the plaintiff respondent in this Court, for a declaration that the Hebanama alleged to have been executed by her in favour of Jafar Ali Khan, defendant 1 in the suit, on 27 January 1929, was fraudulent, invalid and inoperative, and as such was void, and that it might be cancelled. There was a further prayer in the plaint for confirmation of the possession of the plaintiff in respect of the properties described in the schedules to the plaint and covered by the Hebanama dated 27 January 1929. The case stated by the plaintiff in her plaint was that on the morning of the date of her husband's death, defendants 3 and 4 came to the house of her husband and represented that it was necessary for the plaintiff to put her thumb impressions on some blank papers; that the plaintiff was at the time aggrieved at the imminent death of her husband, and she having implicit confidence in defendants 3 and 4, the thumb impressions required to be given by them on blank papers were given at their request. It was the case of the plaintiff that she was once again required by the defendants to put her thumb impressions on some other papers. It was asserted that the plaintiff had not signed any document of the nature disclosed by the document alleged to have been executed by her as the Hebanama in favour of defendant 1, of her own free will. The claim as made in the plaint was resisted by the defendants and written statements were filed by the original defendants 2, 3 and 4. It was the case of the defendants that the plaintiff has executed the Hebanama which was sought to be avoided by her in the suit, understanding the nature and contents of the same. The main allegations made in the plaint in support of the plaintiff's case were denied. On the pleadings of the parties the issues raised for determination in the case on the merits were Issues 4 and 6: Issue (4): Was the deed of gift mentioned in the plaint fraudulent and taken under misrepresentation and undue influence as stated in the plaint? Is it affected by the doctrine of Mushaa? Issue (6): Is the plaintiff an illiterate pardanashin woman? Had she executed the deed of gift with full knowledge of its contents? Was she a free agent at the time of the alleged execution of the deed of gift and had she competent advice at that time?

(2.) On the materials placed on the record, the learned Subordinate Judge in the Court below came to the conclusion that the plaintiff generally knew that the document sought to be avoided in the suit by the plaintiff was executed by her, that she generally knew that it was a Hebanama and not an Ammukhtearnama, as alleged by her in the course of her deposition. The Judge in the Court below came also to the conclusion that there was some show of reading over the document to the plaintiff, but that was not sufficient. According to the Subordinate Judge, the definite case sought to be proved by the plaintiff as stated in her plaint, that the defendants fraudulently took her thumb impressions on some blank papers, representing that it was necessary for the purpose of an Ammuktearnama, had not been established. As has been stated by the learned Judge in the Court below, the case made out on evidence before the Court was somewhat different. The different case sought to be made out by the plaintiff was indicated by the issues raised in the case; and the prayer for allowing the party to raise issues which could not properly be raised on the pleadings of the parties may be questioned. The Judge in the Court below has, on the materials before him, gone into the questions indicated in the issues to which reference has been made, and it has been found as a fact that the plaintiff in the case before us has been successful in making out the case that the defendants were in a position at the time of the execution of the Hebanama to dominate her will. According to the Judge in the Court below, the Hebanama sought to be avoided by the plaintiff in the suit was essentially an unfair transaction vitiated by undue influence and was therefore invalid. The conclusion arrived at by the Subordinate Judge in his judgment was this: that the plaintiff was an illiterate pardanashin woman, that she did not execute the document with full knowledge of its contents, and had not competent advice at the time of the execution of the deed. These are the material findings arrived at by the Court below on the merits of the case regarding the execution of the Hebanama sought to be avoided by the plaintiff. The Judge in the Court below then came to the conclusion that there was delivery of possession to the defendants of the property mentioned in the Hebanama.

(3.) On the question of limitation, which was expressly raised in the suit, regard being had to the first issue framed by the Court, as to whether the suit was barred by limitation, the conclusion arrived at by the Court below was that the plaintiff came to know of the facts entitling her to have the instrument set aside within three years of the date of the institution of the suit. The evidence on the point coming from the plaintiff herself that it was only at the time of her cross-examination in a criminal case that she knew of the fact relating to the execution of the Hebanama and the facts entitling her to have the instrument set aside, has been believed by the learned Subordinate Judge in the Court below; and the suit was accordingly held not to be barred by limitation. With reference to the finding on the merits of the case, namely execution of the Hebanama by the plaintiff, the conclusions come to by the trial Court have already been referred to. As has been indicated already, the Judge in the Court below has by his judgment given relief to the plaintiff in a case which was not the case of the plaintiff as stated in the plaint filed in Court, and which case has been disbelieved by the learned Judge on the evidence before him. The relief was granted on the grounds that the plaintiff had been successful in proving that the defendants were in a position at the date of execution of the deed to dominate over her will, and that the Hebanama in suit represented an unfair transaction, was vitiated by undue influence, and therefore invalid. This is a position which is not indicated by the plaintiff's assertion made in the plaint and such position is not indicated by her evidence before the Court. The fact that the defendants were in a position to dominate her will, that the Hebanama represented an unfair transaction, and that undue influence was brought to bear upon her in the matter of execution of the document, must in course of things be established by clear and cogent evidence. There was absolute want of such evidence before the Court.