FORMAN ALI MIJI Vs. UZIR ALI SHEK

JUDGEMENT

(1.) This appeal, under Clause (15) of the Letters Patent, is directed against the judgment of my learned brother M. G. Ghose J. passed in S.A. No. 1982 of 1934. The appellants are the plaintiffs and the suit was one commenced by them to recover possession of the lands in suit on establishment of their title by purchase. The facts lie within a short compass and may be stated as follows. The disputed lands admittedly belonged to one Jitendra Chandra Nandi, husband of defendant 4 who died in June 1928, having suffered from pthisis for a period of about two to three years before his death. In July 1927, a man named Brojo Nath Goswami came to the village where Jitendra lived and as he was reputed to be a man of great sanctity and spiritual powers, he made a large number of disciples from among the villagers. Jitendra was also attracted to Brojo Nath, and in August 1927, almost within a month, after they became acquainted with each other, Jitendra executed a deed of gift in respect of the property in suit in favour of this Brojo Nath who was described in the document as the spiritual preceptor of Jitendra. Brojo Nath left the village in or about the mon February, 1928, and he came back again early next year, after Jitendra had expired, and in February 1929, he sold the property in suit to the plaintiffs for a consideration of Rs. 1500 only. The property was at that time in possession of an usufructuary mortgagee whose term expired in January 1931. Thereupon, the plaintiffs went to take possession of the property, but were resisted by the defendants, which led to the institution of the present suit.

(2.) The suit was practically contested by defendant 4 the widow of Jitendra, and her contention in substance was that the deed of gift executed by her husband in favour of Brojo Nath was an invalid document, being brought about by fraud and undue influence of the donee, who was really an impostor and a vicious man. It was said that the mind of Jitendra was enfeebled by illness, and he made the gift under the false impression that Brojo Nath would bring him round and cure him of his disease by miraculous powers. At the time of hearing, a further point was raised that the gift was void under Hindu law on account of its being made during the illness of the donor, a circumstance which brings it within the category of adatta or void gifts, as described by the Hindu law givers.

(3.) The trial Judge came to the conclusion that the gift was void under Hindu law. He further held that the document was executed under undue influence which was exercised by Brojo Nath over Jitendra, and the transaction was an unconscionable one on the face of the deed. The plaintiffs were found to be bona fide purchasers for value, but that could not give them any protection in the opinion of the learned Munsif. He accordingly dismissed the plaintiff's suit. On appeal the learned Sub-Judge affirmed in a way the finding of the Munsif as regards the existence of undue influence. He, however, reversed the judgment of the Munsif on the ground that the undue influence which was exercised by Brojo Nath over Jitendra ceased sometime before Jitendra's death, and the latter was free therefore to exercise bis right of revocation, if he was at all willing to do it. Jitendra, far from revoking the gift, rather ratified it, as his statement to his uncle showed. The Sub-Judge held further that the plaintiffs being bona fide purchasers for value without notice, the power of revocation could not be exercised against them, and that defendant 4 was estopped from denying the rights of the donee, as her own omissions led the plaintiffs to purchase the property on the bona fide belief that it was the property of Brojo Nath. The result was that the Court of Appeal below decreed the plaintiff's suit. Against this decision a second appeal was taken to this Court, which was heard by my learned brother M. C. Ghosh J. sitting singly. The learned Judge reversed the decision of the Court of Appeal below and restored that of the trial Court. He was of opinion that the gift was invalid according to Hindu law and even apart from that it was voidable as being brought about by undue influence. He held that there was nothing to show that the undue influence ceased before the death of Jitendra, and that it was open to the legal representatives of a donor to exercise the right of revocation, after the death of the latter. It was further held that the plaintiffs could not claim to be bona fide purchasers for value, inasmuch as they were inhabitants of the same village, and were hence presumed to be acquainted with all the circumstances attending the deed of gift. It is against this decision that the present appeal has been preferred.