ABDUR RAUFF Vs. MTAYMONA BIBI

JUDGEMENT

(1.) This is an appeal in a suit for partition and accounts. The plaintiff in the suit, the respondent in this Court, claimed partition of properties on declaration of her title to the same which she asserted she had inherited from her father, Sheikh Ramjan Ostagar, who died on 7 November 1932, leaving the plaintiff and her step-brother, appellant in this Court, defendant in the suit in which this appeal has arisen. The plaintiff's case was that two deeds of gift and a wakfnama said to have been executed by her father on 4 September 1929 were invalid, void and ineffective in law. One of the two deeds of gift it may be noticed was in favour of the plaintiff herself, while the other was in favour of the defendant; the wakfnama purported to be for religious and charitable purposes and for the maintenance of the settlor and his descendants. The deeds of gift and the wakfnama were according to the plaintiff absolutely fraudulent and fictitious documents, and were not acted upon or intended to be acted upon and there was never any change in the character of the management of the properties or their possession even after the dates of the aforesaid deeds or at any time thereafter; and the plaintiff and the defendant had all along been possessing the said properties jointly as secular properties inherited from their father, the said Sheikh Ramjan Ostagar. The plaintiff asserted in her plaint that she was not aware of and did not admit the execution of the said deeds by the said Sheikh Ramjan Ostagar and further that even if the said three deeds be proved to have been actually executed by the plaintiff's father they were absolutely invalid and inoperative in law, having been brought about by the defendant to defraud the plaintiff and to deprive her of her just and legitimate share in her father's estate and they were vitiated by fraud and undue influence of the defendant practised on the plaintiff's extremely old and imbecile father at a time when he became physically infirm, was incapable of understanding anything properly and was suffering from extreme ill health and had not a sound disposing mind nor a fit mental capacity to execute such deeds validly and had no independent legal advice to do so. On the above basis prayers made in the suit for partition were that the plaintiff might be given a decree for partition of her one-third share in all the properties mentioned in Schs. A, B and C to the plaint and that a decree for accounts might be passed against the defendant, and also for other reliefs ancillary to the same.

(2.) The claim as made in the plaint was resisted by the defendant and the allegations of fact made in the plaint were controverted in the written statement filed in Court. On the pleadings of the parties, three distinct issues were raised on the merits of the case for the plaintiff. Issue (7): Is the deed of wakfnama executed by Ramjan Ostagar valid and legal? Issue (8): Are the properties mentioned in Sch. ka of the plaint wakf properties? Isssue (9): Are the deeds of gift executed by Ramjan Ostagar valid and legal? The learned Subordinate Judge in the trial Court decided the issues mentioned above and passed a decree in favour of the plaintiff. It was declared by the trial Court that the deed of wakf and the two deeds of gift purported to have been executed by deceased Ramjan Ostagar were null and void and inoperative in law; and it was directed that a pleader commissioner be appointed for effecting the partition of immovable properties described in Schs. A and B of the plaint and another pleader commissioner be appointed for settlement of account between the parties from November 1929 up to the date of the institution of the suit in July 1933. The defendant appealed to this Court from the decision and decree of the trial Court.

(3.) The main controversy in the case before us related to the real character of the transactions evidenced by the two deeds of gift and the wakfnama by Sheik Ramjan Ostagar on 4 September 1929: Did the documents represent the real intention of the party executing them, or were they brought into existence under undue influence exercised by the defendant Sheikh Abdul Rouff on his father Sheik Ramjan Ostagar? The question of execution of the three documents appears to have been raised before the trial Court, but on materials on record, regard being had to the evidence of execution and the evidence relating to the registration of the documents, no importance could be given to the plaintiff's case that the deeds of gift and the wakfnama were not executed by Sheik Ramjan Ostagar, so far as his putting his signature to the same was concerned. The real question was whether such undue influence was exercised upon Sheik Ramjan Ostagar by his son Sheik Abdul Rouff in the matter of bringing about the transactions in question represented by the two deeds of gift and the wakfnama as would make them invalid and inoperative. There can be no question that the principles embodied in Section 16, Contract Act, must guide Courts in coming to conclusion in a case in which the issue as to exercise of undue influence is raised. A document of gift or for the matter of that, a wakfnama, may fail for any of the reasons which may go to invalidate the contract, such as domination, undue influence, or coercion: see Musa Fida Rasul V/s. Yakub Beg . According to the rules enacted in the statutory provisions referred to above, where the relations subsisting between the parties are such that one of them was in a position to dominate the will of the other and used that position to obtain an undue advantage over the other the question of exercise of undue influence comes in.