Authored By : L.H. Jenkins, J.G. Wooddroffe

L.H. Jenkins, C.J.

1. The Plaintiffs have brought this suit for establishmentof their title to premises known as No. 4, Shib Thakoors Lane, in the town ofCalcutta and for possession and incidental relief. This property was on 13thMay 1871 expressed to be assured to Sreemutty Hemmoni Dassi and SreemuttyOngodabar Dassi, their heirs, representatives and assigns for ever as tenantsin common in the shares and proportions indicated in the instrument oftransfer. By a transfer of 17th of April 1876, Sreemutty Ongodabar Dassiassured her undivided shares in the property to Sreemutty Hemmoni Dassi, herheirs representatives and assigns for ever. On the 4th December 1909, Hemmonidied and the Plaintiffs claim that they thereupon became entitled to theproperly and they put their claim in an alternative shape. Firs, they maintainthat the property was acquired by the husbands is of the two ladies benami inthe names of their wives, and that they, the Plaintiffs, thus became entitledas reversionary heirs. In the alternative they allege that they are thestridhan heirs of Hemmoni and so entitled to the property.

2. The Defendants 2 and 3 on the other hand claim that theyare entitled to the property under an instrument of trust of the 17th July1899.

[His Lordship then referred to the issues of which thefollowing are material.

3. Was the deed of trust signed by Hemmoni

4. If so, was it validly executed, and is the same bindingon her]

3. The Judge tried issues 3 and 4 first, and on them he heldthat there was no evidence what advice was given to the lady and therefore hewas bound to assume that no advice was in fact given. He held as a consequencethat the instrument of trust was not binding on the lady. A decree was passedin accordance with this conclusion in the Plaintiffs favour. From thisjudgment the present Appeal has been preferred, and the only question arguedbefore us is whether the instrument was binding on Hemmoni or not. Now theinstrument of trust is in Bengali, and its provisions may be brieflysummarized, for the document itself is shore and free from complication.

4. If purports to be addressed to Hemmonis younger brother,Panna Lall Dutt, a lunatic represented by his father-in-law, Babu Kessub LallPyne, the committee appointed by the High Court.

5. It is expressed to be an irrevocable deed of trust, andrecites her stridhan title to the property, and then proceeds as follows; youare my younger uterine brother. I am attached to and have affection for youfrom your childhood. But unfortunately during your youth you became insane andwith a view to take care of you and look after your wife and minor sons anddaughters, &c, your father-in-law, Srijukta Babu Kessub Lall Pyne, put in apetition on the Original Side of the High Court on 7th September 1897 and onthe 9th December 1897 the said Babu Kessub Lall Pyne was appointed thecommittee." Then the instrument purports to create a trust in respect ofthe properly in suit, and to declare that Hemmoni shall not be competent torevoke the deed of trust or to sell, mortgage or give away the properly or tocharge it by way of security for anyone or grant mourasi mokatari on a longterm to anyone. Then it proceeds in these terms: "After my death you shallhold and enjoy this trust properly through the committee appointed by the Courtand on your death your sons, grandsons and heirs in succession shall continueto hold and enjoy with all manner of right such as sale, gift, &c. To thismy heirs or representatives shall not be competent to raise any plea orobjection, that is, on my death you shall be the absolute owner in possessionof this trust property.... To this effect I execute this irrevocable deed of trustof my own free will and while in a composed state of mind."

6. The instrument contemplates mutation of names but whetherthis was effected or not does not appear.

7. These then are the terms of the instrument. I will nextset out the facts that bear on the point now at issue.

8. For the purposes of this Appeal it has to be assumed thatthe property was Hemmonis stridhan, and if that be so, its descent would begoverned by the rules relating to stridhan under the Dayabhaga School of Law.Her brother Panna Lall after his lunacy resided with Hemmoni as did his family,and she used to look after his children, his two sons and one daughter.

9. It is the evidence of Keshub Lall Pyne that Hemmoni toldhim that she would like to set apart her property for the ben fit andmaintenance of her brother and his family and that he thereupon saw BhupendraSri Ghosha, an attorney of this Court and at that time an assistant in the firmof Messrs. Sanderson & Co., and the son of an old college-friend of Keshub.

10. According to Keshub he told Bhupendra that Hemmoni hadthis property which she wanted to give away to her brother, and Bhupendra saidhe would have it done. This, Keshub says, was the instruction he received fromHemmoni.

11. Then he says that when the document was ready he cameand saw Hemmoni about it with Mathura, the writer of the document and amukhtear in Messrs. Sandersons office, that Mathura read over the document toHemmoni, that she heard its contents and said that was all right. Hemmoni, hedeclares, gave him Rs. 30 for the requisite stamp, and this he made over toBhupendra.

12. The next event, according to Keshub, is the execution ofthe document; he, Bhupendra and Mathura were present, the document was read toher; the lady put her thumb impression on the documerit by way of execution; itwas attested by Bhupendra and Mathura. Later, he tells us, the document wasregistered and, for the purpose of effecting the registration, the Registrarcame to Hemmonis house. " The Registrar," he deposes," came andasked Hemmoni a number of questions if the document had been executed by her.She answered the questions put to her and admitted execution and then theRegistrar left." This then is Keshubs evidence and I believe it to betrue. The learned Judge was evidently favourably impressed by this witness andhe does not discredit his evidence on any point. I now turn to Bhupendra SriGhoshas evidence. It certainly cannot be said that his evidence shows him tobe a partisan of the Defendants by whom he was called. He declares that he hasno recollection of the execution of the document and seeing that the executionwas in 1899 this well may be. But seeing his signature on the document he sayshe witnessed it, and he is able to say that it is in Mathuras handwriting; inreply to the Court he explains that in Messrs. Sandersons office severalBengali documents used to be prepared, and for that purpose this mukhtear waskept. He says he does not remember whether before execution the document wasexplained to the lady by anyone.

13. Then his evidence runs as follows:

Q, According to your usual practice, would you attest thedocument to be executed by the lady, without the document being first explainedto her

A. No, I would not.

Q. Would you attest such a document without explaining tothe executant the full contents and purport of the documents

A. No, I would not, unless it is explained by some one else.

Q. What is your belief in respect of this document

A. My belief is, it must have been read out to her. Ibelieve it was read out and explained to her.

I have no recollection who, if any one, was present at theexecution of the document.

14. In cross-examination he says:

I dont think I have ever explained a document to apurdanashin lady myself and not recorded the fact on the document.

This document bears nothing to show it was explained by me.Regard being had to that, I dont think I could possibly have explained thatdocument myself.

Q. If that document had been explained in your presence andif you had attested in your professional capacity, would you have omitted tosee there, the fact that the document had been explained, is not endorsed onthe document itself

A. Yes, I should think so.

Q. It is a precaution, which it is inconceiveable that asolicitor would nut take

A. I cant talk of any other solicitor, but I myself woulddo it. It is exceedingly common to do so.

Q. It would be considered grossly negligent and highlyimproper to omit to do so, in the case of a purdanashin lady :

A. I should think so.

I was written to produce my Day books in this matter. I wassubpoenaed to produce them.

Q. Is there any entry in any of your Day books, at all,relating to this document

A. I have not been able to refer to that because it was notin my possession.

If there are any entries, it would be in the Day book ofMessrs. Sanderson and Co.

15. Mathura, the draftsman and attesting witness is dead,and so the only evidence on the record is that of Bhupendra Sri Ghosha andBabu, Keshub Lall Pyne and on this evidence I come to the followingconclusions.

16. First, I hold that the idea of this provision for herbrother and his family originated with Hemmoni herself, and that theinstructions on which the draft was prepared accurately reflected the ladyswishes as to the beneficial disposition of her property after her death.Further, I hold that the instrument was executed by her, and attested byBhupendra and Mathura, and was subsequently registered.

17. Then again it is established to my satisfaction that theinstrument was read to Hemmoni by Mathura, that she expressed her approval ofit, and that she was subsequently questioned by the Registrar, and answeredthese questions and admitted execution. It is true that the lady was illiterate,but the allegation in the plaint that she was blind is opposed to the fact. Itis further said she was old:-in fact she was 52, and lived 10 years or moreafter the execution of the instrument of trust. The utmost that can be said isthat there is no evidence as to what advice was given to the lady.

18. But the importance of this must depend on thecircumstances of each case; it cannot be accepted as a formula conclusive ofevery case that the absence of advice vitiates the transaction. Advice is notin itself essential; it is merely a means to secure that which is essential, anintelligent apprehension of the transaction. It was said by Lord Macnaghten inMahomed Buksh Khm v. Hosseini Bibi L R. 15 I. A. 81 at p., 92 (1888) that Thefirst and practically perhaps the most important question is, was thetransaction a righteous transaction, that is, was it a thing which aright-minded person might be expected to do "

19. What is the answer if this test be applied to thepresent case

20. Fletcher, J., thought the story of her wishing to makesuch a provision for her brother and his family was not an improbable one. Iagree, indeed I would go further and say that it was eminently probable, andeven a righteous transaction.

And I am by no means sure that the learned Judge would nothave held the same view had he not supposed that the gift had the effect ofreducing the lady from a position free from financial cares to one ofdependence on the good will of her lunatic brother and his family. But this wasnot the fact, for the lady retained a life interest in the property.

21. In Hakim Muhamed Ikramuddin v. Najiban L. R. 25 I. A.137 (1898) the Privy Council had to deal with a case where there was an absenceof independent advice, and yet in a transaction far more complicated than thepresent they held this absence was not fatal, and they evidently consideredthey were not throwing the slightest doubt on the sound doctrine laid down innumerous cases as to the obligations of persons taking benefits from a puidanashinlady.

22. In Gitish Chander Lahoree v. Bhuggobutty Dibia 13 M. I.A. 419 (1870) it is true a gift by a purdanashin lady of her stridhan propertyin favour of her sisters was after her death set aside at the instance of herhusbands adopted son, but the gift was in the nature of a death-beddisposition; the evidence was conflicting as to the person intended to bebenefited, there was uncertainty as to what were the instructions and from whomthey emanated and in their Lordships opinion the evidence was sountrustworthy, so uncertain and so conflicting that it did not enable them todeclare affirmatively that the gift was in any sense the act and deed of thepurdanashin lady or even that she had put her hand and seal to it. The evidencein this case in no way corresponds with this picture of infirmity. Theprinciple expounded by their Lordships in that case was that the Courts shouldbe careful to see that deeds taken from purdah women have been fairly taken;that the party executing them has been a free agent and duly informed what shewas about. This test is, I think, satisfied in this case. It was argued that assome of the words in this Bengali instrument were in English the lady could nothave understood them, and in this connection it is pointed out that the words" committee," " rovocable " deed of trust,""revoke," and trust" were in English.

23. It is true that the evidence does not, show that thesewords or the irrevocable character of the document were explained to her, andthat is an infirmity in the Defendants case, but I cannot regard it asdestructive of their claim under the instrument of trust. In my opinion, hen,Hemmoni knew all about the transaction, it originated with her, the instrumentcarrying it into effect: was read to he, she give an intelligent assent to itsprovisions.

24. There is therefore in my opinion no ground for sayingthat this instrument was not her act and deed in he fullest sense.

25. I therefore think the decree of Fletcher, J., should beset aside and the case remanded for the determination of the relevant issuesthat have been left untouched and the final decision of the case. The questionof costs is reserved.

J.G. Wooddroffe, J.

I agree.

.

Keshub Lall Pyne and Ors. vs. Radha Raman Nundy and Ors.(04.12.1912 - CALHC)