LACHHMI KUNWAR Vs. DURGAI KUNWAR

JUDGEMENT

(1.) THE litigation leading to these two first appeals arises out of the following state of facts. One Kundan Lal had two sons, Nathmal Das and Pem Raj. Nathmal Das died in the month of June 1913, leaving no children surviving him but a widow Musammat Lachhmi Kunwar, who is the appellant in both the appeals now before us. Pem Raj died in the month of February 1914. He left no son but he left daughters and a widow, Musammat Durga Kunwar, who is the respondent in both these appeals. It is a matter of some significance that there are now living sons of the aforesaid daughters of Pem Raj by the respondent Durga Kunwar. On the 29th of July 1914, the two widows presented themselves outside the office of the Sub- Registrar at Khurja. Musammat Lachhmi Kunwar there tendered for registration a certain document which is printed at A 20 and the following pages of our record of first Appeal No. 80 of 1916. THE Sub-Registrar read over this document to the two ladies, who were sitting concealed from the public gaze behind the curtains of a bullock cart. Each lady was identified by an own brother there present for that purpose. THE Sub-Registrar read over the document and both ladies admitted execution. THE document was then registered. It commences with a recital to the effect that the two brothers, Nathmal Das and Pem Raj, lived jointly, which is followed up by the emphatic amplification that "they were joint in food, business and everything." It is then admitted that Nathmal Das died first and Pem Raj after him; but upon this admission follows the curious recital that the two executants of the document, the widows of the aforesaid brothers, "became the owners of the property left by our husbands in equal shares." On this basis, the two executants proceed to a detailed division and apportionment of the estate which originally belonged to Nathmal Das and Pem Raj between themselves. It is not denied that the apportionment is a fair one on the basis on which it proceeded, namely, on the assumption that the two executants were the owners of the property in equal shares. About a year later a dispute broke out upon applications made by both ladies for a succession certificate in respect of the collection of certain debts due to their husbands. THE necessary certificate was eventually granted to Musammat Durga Kunwar, for reasons with which we are not concerned; but the dispute over this matter led to the institution of two distinct suits. In each case one of the widows came into Court as plaintiff and impleaded the other as defendant. Musammat Lachhmi Kunwar asked for a declaration affirming her right to separate possession and enjoyment of the property allotted to her by the deed of the 29th of July 1914, already referred to. In her plaint, she states that on the death of each of the brothers, their respective widows had entered into possession and enjoyment each undivided share in the family property belonging to her own husband. She then suggests that a dispute had arisen because she, Musammat Lachhmi Kunwar, had been authorised by her late husband to adopt a son to him and was proposing to exercise that right. Hence there was a reference to arbitration and a division of the property between the two ladies was effected by two arbitrators named in the plaint. THE deed of the 29th of July 1914 was drawn up on the basis of the division made by these arbitrators. It was duly executed by both the parties and Musammat Lachhmi Kunwar claims that it is binding upon the widow of Pem Raj. Musammat Durga Kunwar sues for a declaration that she is in no way bound by this document, that she is in law the owner of the entire property which had formerly belonged to the two brothers, Nathmal Das and Pem Raj, and is entitled to be put and maintained in possession of the same in spite of anything contained in the partition deed already mentioned. Her case against that document is set forth in paragraphs 9 and 10 of her, plaint, the essential portion of which it seems worth while to reproduce in detail: THE plaintiff has not executed any deed of partition, nor did the plaintiff understand her legal rights, nor was there any opportunity to understand them. If the defendant took unlawful advantage of the plaintiff s position improperly on the strength of her brothers and obtained any document from the plaintiff on false allegations, such proceedings cannot be binding upon the plaintiff, nor can the defendant benefit from such proceedings and documents. THE plaintiff is a pardanashin lady and is illiterate and hard of hearing. She has no knowledge of zemindari affairs and legal rights. Moreover, she did not get an opportunity to make enquiries owing to grief.

(2.) IN the evidence which she gave in Court Musammat Durga Kunwar went the whole length of setting up a case of fraud pure and simple. She said that the brothers of Musammat Lachhmi Kunwar, having secured the assistance of her own brother, took her to the Tahsil at Khurja, telling her that certain arrangements were being made about the lambardarship of the landed property. She was too hard of hearing to be able to understand any document from its merely being read over to her, but she had been told that she must say "yes" in reply to any question that might be asked her and must put her thumb impression to any paper which might be placed before her for that purpose. IN this way she accounts for the execution of the deed in question. There has been a good deal of conflicting evidence in the Court below, but the learned Subordinate Judge has made up his mind to go the whole way with Musammat Durga Kunwar and has substantially found in favour of her allegations of fraud as made in her evidence. IN appeal, we have been asked to consider rather what would be the position of Musammat Durga Kunwar in respect of this document, even assuming that she executed it after understanding its contents and its general effect as dividing the family property equally between herself and Lachhmi Kunwar. The first question which comes up for consideration in this connection, is that of the jointness or separation of Nathmal Das and Pem Raj. There was a distinct issue upon this point in the Court below and a good deal of conflicting evidence was produced; but the learned Subordinate Judge has come to a clear finding that the brothers were members of a joint undivided Hindu family at the moment of the death of Nathmal Das. This finding is not challenged in the memorandum of appeal which Musammat Lachhmi Kunwar has filed in identical terms in each of the two cases. It is unnecessary, therefore, for us to go into the evidence upon which it rests, beyond remarking that there certainly was evidence to support it, including Musammat Lachhmi Kunwar s own admission in the disputed document of July the 29th, 1914. We must take it, therefore, that when Nathmal Das died, the whole of what had been the joint family property of himself and his brother, passed by survivorship to Pem Raj. Musammat Lachhmi Kunwar retained nothing in law except a right to maintenance. When Pem Raj died, the estate vested by inheritance in his widow Musammat Durga Kunwar. The question then is whether this lady is bound by a gratuitous alienation of one-half of this property, effected on the basis of a document which starts with the recital that she and Musammat Lachhmi Kunwar are the owners of the property in question in equal shares. This recital is wrong upon the facts. If Musammat Durga Kunwar was induced to believe it to be true by any body better acquainted with the facts, she is entitled to relief against this document on the ground that she was deceived into executing it and that she executed it without such knowledge of the facts and of her true position as would be necessary in order to bind a pardanashin lady in a transaction of this sort. If, on the other hand, both the parties to the document were under a mistaken impression as to their ownership, the contract in question is liable to be set aside on the ground of common mistake, if upon no other. From this point of view, the position seems clear enough. The best that could be said on behalf of Musammat Lachhmi Kunwar has been to contend that the document in question represents in some way a reasonable settlement of a bona fide dispute. That dispute can scarcely have been on the question whether Nathmal Das and Pem Raj were joint or separate, when the document itself recites that they were joint. IN Musammat Lachhmi Kunwar s plaint, and also in some of the evidence led by her, an attempt was made to suggest that there was a bona fide dispute between the parties of quite a different kind. The suggestion is that Musammat Lachhmi Kunwar was proposing to adopt a son to her deceased husband, that the effect, of this adoption would be to deprive Musammat Durga Kunwar of the estate held by her as widow of Pem Raj, or at least of one-half of the estate, and that, in order to avoid a dispute upon this point and to make sure that any adoption which Lachhmi Kunwar might effect, would not give the adoptive son more than one-half of the estate, she was induced to enter into the transaction in question. Whether the evidence on the record would bear out this plea, as a matter of fact, assuming that it proceeded upon correct propositions of law, is an arguable question. The plea may be disposed of upon the ground that it does not proceed upon a correct proposition of law. It is sufficient to refer to two cases, Chandra v. Gojarabai 14 B. 453: 7 INd. Dec. (N.S.) 770 and Adivi Suryaprakasi Row v. Nidamarty Gangaraju 4 INd. Cas. 386 : 7 M.L.T. 236 : 33 M. 228 : 1910 M.W.N. 251, as authority for the proposition that any adoption which Musammat Lachhmi Kunwar might make, or might purport to make, to her deceased husband, after that husband and his surviving brother were both dead, could not affect the rights of Musammat Durga Kunwar who had inherited the estate as widow of Pem Raj. Nor could such adoption affect the rights of the reversioners; that is to say, the estate would pass on the death of Durga Kunwar to the reversionary heirs of Pem Raj, and these according to the evidence on the record, would probably be, first, his daughter or daughters, and eventually the sons of the said daughters. One or the points against the appellant in these cases is that, from any point of view, the alienation purporting to be effected by Musammat Durga Kunwar of one-half of the estate under the agreement in dispute, could not possibly stand against a suit by the reversionary heirs of Pem Raj. IN the view which we take of the case and of the law applicable to the established facts, it is not necessary for us to go the whole length of the finding upon which the Court below has disposed of the two suits. We think that the decision of the Court below is correct; that Musammat Durga Kunwar is not bound by this agreement and is entitled to succeed in her claim to the possession of the entire property. Both these appeals, therefore, fail and we dismiss them with costs.