Ramratna Singh, J.:— The suit out of which this appeal arises was for the recovery of possession of two holdings, situated within the Madhupur Municipality, with mesne profits from the 2nd September 1952. As the suit was decreed, the defendants have preferred this appeal.

2. One Padarath Koeri had four sons, of whom two died long ago without leaving any issue or widow. Of the remaining two, Hira Koeri died leaving a son, Bhola Koeri, defendant No. 1, and defendants 2 to 4 are sons of Bhola Koeri. The second son of Padarath Koeri named Sheodutt executed a will on the 4th February 1936 in respect of the houses standing on these holdings in favour of Harihar Prasad, plaintiff No. 3, son of the brother of Sheodutt's wife, Musammat Kabutari (defendant No. 5), and also in favour of Durga Prasad (plaintiff No. 4), son of Sheodutt's daughter's daughter. On the 5th June 1948, Sheodutt superseded the will by executing a deed of gift in respect of these very holdings in favour of plaintiffs 1 and 2, who are, respectively, the wives of plaintiffs 3 and 4. These two donees got their names recorded in the records of the Ghatwal, who was the landlord, and also in the records of the Municipality. Sheodutt died on the 8th August 1952; and Musammat Kabutari died in 1959 during the pendency of this appeal. In September 1952, there was a dispute regarding possession between the parties. This resulted in a proceeding under Section 144 of the Cr PC, which was converted into a proceeding under section 145 of the Code. The Magistrate upheld the possession of defendants 1 and 4 over an area of about 18 kat-has out of the two holdings and that area including the constructions thereon is the disputed property in suit. The plaintiffs went up in revision against this order, but the application in revision was rejected by the Additional District Magistrate of the Santhal parganas on the 30th December, 1953.

3. The case of the plaintiffs was that Sheodutt was separate in all respects from his brothers and their descendants and, as he had love and affection for the plaintiffs, he made a gift of the property in favour of plaintiffs 1 and 2 and he completely divested himself of the gifted property. But they were forcibly dispossessed from the disputed area by defendants 1 to 4 on the 2nd September 1952; and, as the proceeding under section 145 was decided against them, they instituted the suit on the 29th November 1954. Defendant No. 5, Mussammat Kabutari, supported the case of the plaintiffs in her written statement dated the 14th February 1955.

4. Defendants 1 to 4 stated in a joint written statement that, although Sheodutt and his brothers lived separate from one another and constructed separate houses amicably on the ancestral land, they did not partition the ancestral property by metes and bounds, so as to give Sheodutt an absolute ownership over the property in his possession. Sheodutt is said to have executed the will and the deed of gift at the instance of the plaintiffs when he had grown very old, had lost his eye-sight and was not capable of understanding matters, mainly with a view to defraud creditors. It was then asserted that, in view of section 27 of Regulation III of 1872, Sheodutt had no right to transfer the land over which the disputed houses stand, as they were Jammabandi raiyati holdings and their character of non-transferability had never been changed. The validity of the gift has been challenged and it is said that Sheodutt remained in possession of the property included in the deed in his own right until his death. The allegation of forcible dispossession of the plaintiffs by the defendants is also denied; and the suit is said to be bad for misjoinder of plaintiffs 3 and 4.

5. The learned Subordinate Judge, who tried the suit, found that though the disputed land was originally non-transferable, its character of non transferability was changed after it was included in the Municipal area of Madhpur. He found further that Sheodutt and his brothers had partitioned their ancestral property and the property which formed the subject-matter of the deed of gift was the separate property of Sheodutt. The deed of gift was found to have been executed by Sheodutt of his own free will on account of love and affection for the donees who got possession of the gifted property in the life-time of Sheodutt. He accepted the case of the plaintiffs that they were dispossessed of the disputed area on the 2nd September 1952 and found that plaintiffs 3 and 4 were not necessary parties. In view of these findings, the suit was decreed in full.

6. Mr. P.R Das, who appeared for the appellants, did not challenge the finding about separation of Sheodutt from his brothers and Sheodutt's exclusive ownership of the property included in the deed of gift; but he challenged all the other findings. Mr. K.K Sinha, who appeared for the respondents, did not also challenge the finding that plaintiffs 3 and 4 were not necessary parties; but this finding is not material inasmuch as it could not affect the result of the suit.

7. The first contention of Mr. Das was that the deed of gift was bad inasmuch as it was execute by Sheodutt under undue influence. He referred to the following observations of Lindley, L.J (see Allcard v. Skinner, (1887) 36 Ch. D. 145 at p. 181) and submitted that the present case was covered by the second proposition laid down by the learned Lord Justice:

“First, there are the cases in which there has been some unfair and improper conduct, some coercion from outside, some overreaching, some form of cheating, and generally, though not always, some personal advantage obtained by a donee placed in some close and confidential relation to the donor………………

8. The second group consists of cases in which the position of the donor to the donee has been such that it has been the duty of the donee to advise the donor, or even to manage his property for him. In such cases the court throws upon the donee the burden of proving that he has not abused his position, and of proving that the gift made to him has not been brought about by any undue influence on his part. In this class of cases it has been considered necessary to show that the donor had independent advice, and was removed from the influence of the donee when the gift to him was made”.

9. But our law on the subject is slightly different as will appear from the definition of “undue influence” in Section 16 of the Indian Contract Act, which reads thus:

“16(1) A contract is said to the induced by “Undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another—

(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or

(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age illness, or mental or bodily distress.

(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable the burden of proving that such contract was not induce by undue influence shall he upon the person in a position to dominate the will of the other.

10. Nothing in this sub-section shall affect the provisions of Section 111 of the Indian Evidence Act (I of 1872)”.

11. It will be noticed that the ingredient of using the dominant position contained in sub-section (1) is absent from the proposition laid down by Lindley, L.J In Poosathurai v. Kannappa Chettiar, 47 Ind App 1 : (AIR 1920 PC 65) the Privy Council explained the provisions of Section 16 of the Indian Contract Act thus:

“When a party to a contract seeks to set it aside on the ground of undue influence, it is not sufficient for him under Section 16 of the Indian Contract Act, 1872, to establish that the other party was in a position to dominate his will. He must also prove that the other party has used that position to obtain an unfair advantage over him. It is only if the transaction appears to be unconscionable that, by sub-section (3), the burden of proving that the contract was not induced by undue influence is thrown upon the person who was in a dominating position. He, in that case must prove affirmatively that no domination was practised, but that the person seeking to set aside the contract was scrupulously kept separately advised in the independence of a free agent”.

12. The appellants in the present case must, therefore, prove, firstly, that there was a special relationship between Sheodutt and the donees on account of which the former naturally relied upon the latter for advice and the latter were in a position to dominate the will of the former in giving the advice; and, secondly, that the donees used that position to obtain an unfair advantage for themselves. But if the appellants prove that the donees were in a position to dominate the will of Sheodutt and that the transaction appeared to be unconscionable the onus will be shifted on the donees to show that Sheodutt was not induced to make the gift by undue influence and he had the opportunity to obtain independent advice before making the gift. Mr. Das also relied in Sec. III of the Indian Evidence Act which reads thus:

“Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence the burden of proving good faith of the transaction is on the party who is in a position of active confidence”.

13. In other words, if the appellants prove in the present case that the donees were in a position of advantage over Sheodutt, who put trust in them, the onus is shifted on the donees to prove that they did not abuse that trust.

14. Mr. Das has referred to certain admitted facts to show that the donees were in a position to dominate the will of Sheodutt. As stated earlier, the donees are Peary Devi (plaintiff No. 1), wife of Harihar Prasad, (plaintiff No. 3), son of the sala of Sheodutt, and Janki Devi (plaintiff No. 2), wife of Durga Prasad (plaintiff No. 4), who is the son of Peary Devi, daughters daughter of Sheodutt. Harihar (P.W 5) has stated that he was brought up by Sheodutt at his house and Durga was brought up by Sheodutt after the death of his mother in his infancy. He has explained this fact further in cross-examination, where he says that each of them was brought at the age of one year by Sheodutt to his house. Both of them were married by Sheodutt. He has, of course, stated that Durga's father took Durga to Asansol when he was ten years old and since 1948 or thereabout Durga has been living in Calcutta in connection with a business. But he has admitted that the wife of Durga lived with Sheodutt and she still lives in a portion of the gifted house.

15. Prahjad Modi (P.W 1), Chairman of Madhupur Municipality, stated that Harihar and Durga were living with ‘Sheodutt since their boyhood and they were living with Sheodutt with their wives. Even in the deed of gift (Ext. A) dated the 5th June 1948, the executant, Sheodutt, has said that he brought Harihar and Durga in their infancy and since then he and his wife had been maintaining them as their sons. Then he states that he got them married and since the marriage the wives of both of them, that is, the donees, had been serving and taking care of Sheodutt and his wife; and out of boundless love and affection for them he was making this gift. None of the contents of the deed of gift were disputed. Harihar has further said that Sheodutt had a business of potatoes which was looked after by him (Harihar), as Sheodutt had grown old. According to Harihar, Sheodutt died at the age of 80 years, three years after the deed of gift and, according to the deed of gift, the executant, Sheodutt was about 75 years old in 1948 and he had grown very old and felt helpless in walking.

16. The other plaintiffs have not been examined. Dwarka Prasad Sahu (D.W 2), a neighbour, said that Sheodutt died at a very old age and during his illness he used to lose the balance of his mind and to talk incoherently. The deposing defendant, Ramsaran Prasad, has stated that Sheodutt had be come blind about eight years before his death and had lost the balance of his mind. But Ramautaf Sah (P.W 2), another neighbour, and Harihar have denied the fact that Sheodutt had lost his eye-sight or his power of understanding. The recitals in the deed of gift and the statements of Harihar and Prahlad prove, however, that (1) Sheodutt was so old at the time he executed the deed of gift that he felt helpless in walking, (2) he brought Harihar and Durga since their childhood, married them and maintained them as well as their wives, (3) Sheodutt had boundless affection for all of them, and (4) his business was being looked after by Harihar. Thus, they were in a position to dominate the will of Sheodutt.

17. The learned Subordinate Judge has held that, inasmuch as Sheodutt had love and affection for the donees, the deed of gift was executed voluntarily and out of free will. But as pointed out by Mr. Das, that is precisely one of the grounds in support of the contention that Sheodutt could not have any free will of his own in relation to the plaintiffs.

18. The other admitted facts in support of Mr. Das's contention are: (1) the gift was made in favour of Peary Devi, who could never inherit the property of Sheodutt even though her husband Harihar, and Janki Devi who was a distant heir, (2) the deed of gift was unnatural inasmuch as Sheodutt excluded his natural heirs, namely, his wife and thereafter the defendsnts-appellants and (3) by executing the deed of gift Sheodutt placed himself and his wife at the mercy of the donees inasmuch as he did not keep any property for him-self. Incidentally, it may be mentioned that in 1936 Sheodutt had executed a will in which he made some provision for his wife as well. This will was in favour of Harihar, Durga, Harikishun (Harihar's brother), Musammat Rukmini Kumar (mother of Harihar), Srimati Gujari (mother of Durga) and Musamat Rabutari (wife of Sheodutt). The two holdings were given by this will to the first four persons; but it was further stated that Musammat Kabutari and Srimati Gujari would be entitled to live in one of the houses during their life-time and that Harihar and Durga would be bound to maintain them.

19. Further, these two ladies were amongst the executrix of the will and were required to look after the properties so long Harildshun, Harihar and Durga did not attain majority. The will would, however, have no effect, if the gift were a valid and effective transaction and there would be no provision for Sheodutt's wife or Musammat Gujari. It follows therefore that the plaintiffs were in a position to dominate the will of Sheodutt and, I inasmuch as the transaction was unconscionable, I the plaintiffs have to satisfy the court that they did not abuse their position and that the deed of gift was not brought about by any undue influence on their part. In such a case, the donee must show that the donor had independent advice, and was removed from the influence of the donee when the gift was made. But the plaintiffs did not adduce any evidence to show that Sheodutt received any independent advice before executing the deed of gift; and even Harihar, the only plaintiff who gave evidence, did not state that no undue influence was exerted on Sheodutt at the time.

20. The donor's wife, namely Musammat Kabutari, was not examined in court, though she filed a written statement in support of the case of the plaintiff; but any statement, in the absence of her statement on oath, is of no use to the plaintiffs in the eye of law. The scribe of the deed of gift, namely Sailjanand Prasad and two of the three attesting witnesses, namely, Anwar Ali and Murlidhar Sah both of Madhupur were not examined. The third attesting witness, Ramautar Sah (P.W 2) in cross-examination did not say that Sheodutt received any independent advice or that he was for the time being removed from the influence of the, plaintiffs. His statement that the contents of the deed of gift were read over and explained to Sheodutt before he signed the same does not meant that he received independent advice. It is also remarkable that the deed was registered at the house of Sheodutt. Plaintiff Harihar has said that he had left the house after the arrival of the sub-registrar to call Ramautar Sah from the bazar and after calling him he had again left for bazar on some business. There is no evidence, however, to show that the donees were not inside the house at the time or that Sheodutt received any independent advice.

21. Mr. Kaushai Kishore Sinha, learned advocate for the plaintiffs-respondents contended that there is no evidence to show that the donees or even Durga husband of one of the donees, dominated the will of Sheodutt; and a distinction must be made between the donees and their husbands. But, on account of the fad that the donees were living with Sheodutta since their marriage and that Sheodutt had boundless affection and love for them and their husbands, it was very easy for them to dominate the will of Sheodutt in his old age when he was even helpless in his walking and he was not in a position to exercise his independent judgment due to his dotage for them. It appears that Durga was not at Madupur at the time the deed of gift was executed, but his wife was there. Of course, Harihar and Durga were themselves legatees under the will executed in February 1936 and they were not donees under the deed of gift, which came into existence about twelve years later; But under the will Durga and Harihar got only one house and Harikishun and Rukmini Kumari got the other house, subject to certain rights given to Musammat Kabutari and Gujari Kumari, while under the gift only the wives of Durga and Harihar were the sole beneficiaries without any reservation for any body else.

22. Thus Harihar and Durga got better benefit under the gift, and Harihar, who was managing the affairs of Sheodutt must have played an important part in the creation of the deed of gift. Harihar could not obviously get the deed of gift executed in favour of his wife only, because in that case Sheodutt would have been suspicious of his int n-tions. The next argument was that, as Sheodutt wanted to give his properties to Harihar and Durga in 1936, the gift was a natural act of Sheodutt; but, as stated earlier, they could not have got the houses under the will exclusively even after the death of Sheodutt.

23. Another argument of Mt. Kaushal Kishore Sinha was that Sheodutta confirmed the gift by his subsequent conduct; and in this connection he relied on six documents. It appears that Durga sent money sometimes by money orders in 1940-50 (Exts 9 series) from Calcutta to Dwarka Prasad Sah (D.W 2), the tenant of a portion of one of the houses included in the deed of gift and Dwarka has admitted that he used to make over these amounts to Sheodutt. But this fact is irrelevant, because these money order coupons do not indicate any act on the part of Sheodutt. Exhibits 8, 8a, 8c and 6b are some letters written in 1949, 1950 and 1952 by Dwarka to Durga in which some news was conveyed to Durga and he was asked to bring certain articles. But these documents do not indicate anything to confirm the deed of gift by Sheodutt. Exhibit 8(b) is a postcard dated the 31st May 1952 from Sheodutta to Durga in which Sheodutt asked Durga to come to Madhupur and draw a plan of the house and get the well a little excavated.

24. It is also said that though Sheodutt was admittedly alive for about for years after the execution of the deed of gift he never repudiated the gift. But there can be no acquiescence in, or confirmation of, a transaction until the donor knows his rights and is free from the Influence of the donees, (see the case of (1887) 36 Ch. D. 145 at pp. 186 and 187; and also pp. 235-36 and 245 of White and Tudor's Leading Cases in Equity, Vol. I 1928 edition); and in the present case, there is nothing on the record to indicate that Sheodutt became free from the influence of the donees and their husbands so long as he was alive. Then Mr. Kaushal Kishore Sinha referred to the written statement of the appellants and issues framed in the suit and argued that no Plea of undue influence had been raised and that this plea was inconsistent with the plea in paragraph 16 of the written statement, according to which the deed of gift was a sham transaction brought into existence in the names of the two ladies for the benefit of Musammat Kabutari in order to defraud the creditors. But in paragraph 8 of the written statement it is clearly alleged that Sheodutt was entirely in the hands of the plaintiffs and Musammat Kabutari & had no “free will” of his own at the material time and the plaintiffs could not take advantage of such a position. Such a plea cannot be said to be inconsistent with the plea that the deed of gilt was a sham transaction on account of some other reason as stated in paragraph 16 of the written statement.

25. It is true that no specific issue about the “undue influence” was raised or framed. But) I issue No. 4—“Is the alleged deed of gift genuine ??? valid.?” — was wide enough to include the plea of undue influence. It also appears from paragraphs 10 and 11 of the judgment of the trial court that the parties understood that the question of undue influence was involved and they proceeded on that understanding. In these paragraphs, the learned Subordinate Judge says that the defendants first party challenged the validity of the deed of gift on several grounds, including the ground that it was an unconscionable transaction and that Sheodutt was both bodily and mentally incapable of executing the deed of gift. In paragraph 11 of the judgment, the learned Subordinate Judge has discussed the question of undue influence and found that the deed of gift was not an unconscionable transaction and it was not executed under undue influence. It has already been observed that the reasons given by the learned Subordinate Judge for this finding are precisely the grounds to justify the inference that the deed of gift was executed under undue influence. It could not have been possible for the contesting defendants to adduce any direct evidence regarding undue influence and they were not bound to adduce any evidence on that point, when they got sufficient materials from the evidence of the witnesses examined on behalf of the plaintiffs.

26. Regarding the absence of a specific issue 011 this point, it will be sufficient to refer to an observation of the Supreme Court in Nagubai Ammal & Others v. B. Shama Rao & Others, (S) AIR 1956 SC 593, which is to the following effect (as per placitum);

“Evidence let in on issues, on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question; in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto”.

27. Mr. Kaushal Kishore Sinha then referred to some decisions in support of his contention that the evidence in the present case does not amount to exercise of undue influence on Sheodutt for executing the deed of gilt. The first case referred to by him is that of Ali Zamin v. Syed Muhammad Akbar Ali Khan, AIR 1828 Pat 441. There, the appellants challenged a deed of wakf executed by one Badshah Nawab. According to the deed, the Nawab appointed himself as the first Mutwalli and Ali Zamin would be the next Mutawalli after the Nawab's death. A suit was brought challenging the deed of wakf. One of the grounds for challenging the deed was that undue influence was exercised upon the settlor by the defendant, Ali Zamin, his nephew by marriage and manager of his estate, who under tike deed became Mutwalli on the settlor's death, at a salary of Rs. 250/- per month with a palatial and richly furnished house to live in. On the evidence adduced in that case, their Lordships rejected this ground and made the following observations:

“It must be remembered that this is not a case of contract to which the provisions of Section 16 of the Contract Act, as to undue influence would apply; nor is there, in my opinion, anything unconscionable in the transaction regarded merely as a charitable endowment which, were it legitimate to regard it as a contract, would throw the burden of proof upon the defendants. There is, as I have stated no positive evidence of any sort to prove that Ali Zamin or Bibi Zainia exercised an undue influence upon the settlor.

28. In order to prove undue influence sufficient to invalidate a transaction like the present I think it must be shown that there was some coercion, amounting almost to fraud, whereby the will of one party was dominated by the other so that the resulting transaction cannot be regarded as expressing the real intention of the party coerced. I can find nothing throughout the evidence to support such a conclusion”.

29. These observations themselves show that case was distinguishable from the present case. Then, Mr. Kaushal Kishore Sinha referred to the meaning or ‘undue influence’ given in Someshwar Dutt v. Tribhuwan Dutt, AIR 1934 PC 130 which appears from the following observation:

“On what is connoted by the phrase ‘undue influence’ Lord Granworth in the case of Boyse v. Rossborough, (1857) 6 HLC 2 at p. 49 said:

‘It is sufficient to say that, allowing a fair latitude of construction they range themselves under one or other of these heads coercion or fraud.”

30. And said that there was no evidence of either coercion or fraud in the present case. But domination of the will of a person is also a kind of coercion and the use of his position by a person who dominates the will of the other to obtain an unfair advantage to himself or to his near relations is also a variety of fraud.

31. There is nothing in this decision to show that the Privy Council departed from their earlier interpretation of Section 10 of the Indian Contract Act in 47 Ind App 1 : (AIR 1920 PC 65). In that case their Lordships also observed that the category of cases of undue influence might cover cases, where a party to a transaction exercised that influence in conspiracy with or through the agency of others. In the present case, the donees seemed to have exercised undue influence on Sheodutt in conspiracy with and through the agency of Hariliar. Mr. Kauslial Kishore Sinha argued that in the case before the Privy Council undue influence had not been proved. But that was because evidence was wanting to show that the bargain of sale in that case was unconscionable in itself or constituted an advantage unfair to the plaintiff who challenged the same.

32. Then Mr. Sinha referred to another decision of the Privy Council in Ismail Mussajee v. Hafia Boo 33 Ind App 86. In that case, a Mohammedan Mother transferred nearly the whole of her estate or its proceeds to her daughter, partly by actual transfer and partly in the daughter's name. He son instituted the suit, which went up in appeal to the Privy Council, alleging that the mother was suffering from dementia and was not in a fit state of mind to execute the contracts or manage her affairs and upto within a year of the transaction the daughter was residing with the mother, who was entirely under her domination and control. It was found that the mother was a very old woman with the natural infirmities incident to her age, but she was not of unsound mind or unable to attend the business; and she was able to go to court and give evidence in her litigation against her son and she was able to attend at the registrar's office in person to acknowledge her deeds for the purpose of registration. On the other hand, the daughter resided with her, and presided over her household at the general management of her affairs. It was also not shown whether, with regard to the specific transaction impugned, the mother consulted any body.

33. The Privy Council found that the impugned transaction appeared to have been very natural in the circumstances at the time, inasmuch as the mother was extremely hostile with the son who had issued an advertisement declaring her to be insane. The real relation of the daughter to the mother itself suggested nothing in the way of special influence or control. The evidence seemed to their Lordships quite insufficient to establish any general case of domination on the part of the daughter and subjection of the mother such as to lead to a presumption against any transaction between the two; and with regard to the actual transaction in question there was no evidence established of undue influence brought to bear upon them. That is why their Lordships thought that no case of undue influence had been established. But in the present case? there is sufficient evidence to show that Sheodutt was under the domination oil the donees and their husbands, one of whom was managing his affairs and that the transaction of gift was unnatural in itself inasmuch as it left Sheodutt and his wife at the mercy of the donees.

34. On the other hand, Mr. Das relied on a Division Bench decision of this Court in Ram Chandra Prasad v. Sital Prasad, AIR 1948 Pat 130. In that case, the donee, under the deed of gift, was in illicit connection with the donor's only daughter and, in view of this connection, he had given up residing in his own house and was putting up with the donor and his daughter. It was held that the daughter in the circumstances and, for the matter of that, her paramour Sital (that is, the donee) must be held to have been in a position to dominate the donor's will. Furthermore, the giving away of the entire property in favour of Sital ignoring his daughter and the daughters' daughter, made the transaction unconscionable. These two circumstances conjointly raised a presumption that the document was prima facie brought about under undue influence; and the plaintiff had done nothing to dispel this presumption. In the circumstances, the deed of gift was found to be invalid.

35. The facts of this case are more in consonance with the facts of the present case. It is admitted that the donees were mutated in the records of Madhupur Municipality as also in the office of the landlord, who was a ghatwal without any objection. It is also admitted that Sheodutt's wife never challenged the deed of gift and she died during the pendency of the appeal, while living with the donees in a part of the gifted house which is still in possession of the donees. But these facts cannot matter, if the gift is hit by Section 16 of the Indian Contract Act. On a review of the entire evidence, it must be held that the deed of gift was brought about by undue influence exercised on Sheodutt by the donees and their husbands.

36. Another point raised by Mr. Das was that there was some alteration in the deed of gift, because in the original deed of gift the name of Dawarka (now dead), brother of Sheodutt, appears as an attesting witness, whereas in the certified copy the name of Anwar Ali ippears in his place. The learned Subordinate Judge has discussed the evidence on the point in paragraph 9 of his judgment and come to the conclusion that there was no Interpolation in respect of the name of any attesting witness. The certified copy was prepared from Book No. I of the registration department and the clerk of the registration office said that he had correctly copied from this book. After examining the evidence of the other witnesses, the learned Subordinate Judge observed that the registration clerk committed a mistake in copying the name of Dwarka due to some confusion on account of rush of work as he was the only comparing clerk in the office. Moreover, we find that the name in the original deed of gift may also be read as Anwar Ali. Further there does not seem to be any good reason why this interpolation or change would be brought about by the plaintiffs. In the circumstances, this contention of Mr. Das fails.

37. The third point raised by Mr. Das involves a question of law. The land covered by the deed of gift is situated in the district of Santhal Paraganas. The holdings in the suit admittedly correspond to survey plots 827, 828, part of 829, 830, 831 and 820 recorded in the Macpherson's ‘settlement finally published in 1904, as non-transferable in Jamabandi No. 32 of village Patharchapid. Under sub-section (1) of S. 25 of the Sonthal Paraganas Settlement Regulation 1872 after a period of six months from the date of the publication of the record-of-rights of any village, such records shall be conclusive proof of the rights and customs therein recorded. There are some exceptions to this rule in the sub-section. But admittedly those exceptions do not apply to the present case. Sub-section (3) of S. 25 lays down that after the final publication of the record-of-rights, such records shall not, until a fresh settlement is made be reopened without the previous sanction of the Government.

38. Section 27 of this Regulation which was in force at the time of the deed of gift and which has now been repealed by the Bihar Act XIV of 1949, contains provisions regarding the transferability of the rights of raiyats in the holdings by sale, gift or otherwise. It provides that no such transfer shall be valid, unless his right to transfer has been recorded in the record-of-rights; and no transfer in contravention of the record shall be registered or shall be, in any way, recognised as valid by any court. This section also empowers the Deputy Commissioner to evict a transferee who may have come in possession of such holding or portion thereof in contravention of the said provision Under S. 25-A of the Sonthal Paraganas Rent Regulation 1886, a zammdar or other proprietor of a village could acquire the holding of any raiyat or part thereof for certain purposes; but admittedly the disputed land was never acquired under this section. Section 31 of the Regulation empowers the Government to exclude any land from the provisions regarding determination and adjustment of rent; but there is no evidence of any such order in respect of the suit land. Under clause (3) of the record-of-rights prepared under the Regulation of 1872, an Agricultural land could be converted as homestead by a particular mode; but there is nothing on the record to show that the suit land, which was recorded as agricultural land in Macpherson's settlement, was ever converted under this clause into homestead land. After 1904 came the next settlement known as Gantzers settlement the record-of-rights of which were finally published in 1929. Admittedly, the holdings in question were not surveyed in Gantzer's settlement and not dealt with in the record-of-rights prepared in that settlement, because the municipality of Madhupur had absorbed these lands. Hence, the record-of-rights finally published in 1904 in respect of these lands remained unaffected by Gantzer's settlement and the respondents have to overcome the legal objection to the transferability of these holdings on account of the relevant provisions of the Regulation of 1872.

39. It is admitted that at present the holdings in suit are homestead; and homestead or basauri holdings are transferable in the Santhal Parganas. But these holdings constituted agricultural land as recorded in the Macpherson's settlement; and certain areas, including these holdings were not included in Gantzer's settlement. From paragraph 2 of Gantzer's settlement report, it appears that the local area included within Madhupur Municipality had been left out of this settlement operation. In paragraph 15 of his report, Mr. Gantzer has said that survey maps of Municipal roads and buildings in Madhupur were made under the Bihar and Orissa Municipal Survey Act, but the non-agricultural areas of the other municipal towns were not surveyed. It appears from paragraph 30 of Mr. Gantzer's report, that basauri holdings which are transferable were separately recorded from agricultural holdings. The learned Subordinate Judge has observed that the provisions of Regulation III of 1872 ceased to be applicable to the areas included within Madhupur Municipality, inasmuch as, while ordering fresh settlement in 1926 of village Patharchapti under S. 9 of this Regulation, Government had deliberately omitted to direct that portion of this village which was absorbed by the municipality. Mr. K.K Sinha has also produced in this Court the relevant notification which reads as follows:

“The 10th August 1929.

No. 847-S-177-R.R. In exercise of the powers vested in them, by S. 9 of the Santal Parganas Regulation HI of 1872, as amended by S. 4 of the Santal Parganas Rent Regulation II of 1886, the Government of Bihar and Orissa are pleased to declare that with effect from the 19th October 1929, a setdement shall be made of the areas specified below situated within the Deoghar and Jamtara sub-divisions of the district of Santal Parganas:

AREAS.

1. The whole of the police stations Sarath and Madhupur except the non-agricultural municipal area lying within the town of Madhupur in the Deoghar sub-division.

2. All the portion of the Jamtara sub-division contained in the following sardari circles:

Circle No. I- Ghati.

Circle No. II- Marro-Circle No. III- Pindari.

By order of the Governor in Council R.E Russell,

Secretary to Government”.

40. But S. 9 contains merely the power of the State Government to order that a settlement be made. This section does not contain any power to transfer any area to the municipality or to modify any record-of-rights prepared during the settlement. Section 25(3), of course, contains certain powers to correct or reopen an entry in the record-of-rights which has become final; but the plaintiffs have not shown that any action was taken under this provision. It is true that the ghatwal landlord granted rent receipts in respect of these holdings describing the same as basauri; but there is no provision in the law empowering the landlord to convert an agricultural holding info a basauri holding, except in the manner laid down in S. 25-A of Regulation II of 1886. This section empowers the zamindar or the other proprietor of the village to acquire any land for the erection of buildings or for any religious, educational or charitable purpose through the Deputy Commissioner. But it is nobody's case that the holdings in suit were ever acquired by the landlord.

41. The learned Subordinate Judge has referred to an admitted fact that there have been transfers in the past of portions of Jamabandi No. 32 under exhibit 2(a), a deed of gift, dated the 29th November 1938 and exhibit 4, a registered sale deed dated the 20th March 1954. He has also referred to the evidence of P.W 4, Basudeo Ram Sahu and D.W 6, Ramsaran Prasad, regarding such transfers. He has, therefore, concluded that unless the Original character of the land of Jamabandi No. 32 being non-transferable had changed, there could not have been so many transfers and the authorities would not have allowed these transfers. But this argument is based on speculation. It is possible that the authorities were not apprised of these illegal transfers and therefore, no action was taken by the Deputy Commissioner; to cancel these transfers. The learned advocate for the respondents could not point out any provision in the Bihar and Orissa Municipal Act, 1922 or the Bihar and Orissa Survey Act or any special law applicable to the Santhal Paraganas to show that, as soon as any land was included in a municipality, the entry in the record-of-rights ceased to apply to it. On the contrary, there is a specific provision in Section 1 of the Bihar Tenancy Act 1885, according to which on the issue of a notification the Act does not apply to an area included within the municipality.

42. Mr. K.K Sinha relied on S. 31 of Regulation II of 1886; but that section merely empowers the Government to exclude any land from, the operation of this Regulation and of such portions of the Sonthal Paraganas Settlement (Amendment) Regulation 1908 as relate to the adjustment of the records of rent and no notification or order under this section has been produced. He also referred to the previous deposition of defendant No. 1, Bhola Koeri, dated the 22nd July 1954, wherein he stated that Sheodutt and his cosharers separated from one another and they constructed separate houses on the raiyati land and since 1944 or thereabout the ghatwal was realising basauri rent. But, as stated earlier, these actions of the raiyats and the ghatwal cannot by themselves make the entry in the record-of-rights prepared under Macpherson's settlement ineffective. In the absence of any notification or any provision of law to show that the land included in the jamabandi No. 32 became transferable subsequent to its inclusion in Madhupur Municipality area, it must be held that the land remained non-transferable and, therefore, the deed of gift executed by Sheodutt was not valid.

43. Mr. K.K Sinha then argued that, under Section 19-A of the Contract Act, only Sheodutt or his legal representative could avoid the gift on the ground that it was executed under undue influence and this could be done under Article 91 of the Limitation Act within three years of the execution of the deed. This provision of law was not disputed by Mr. Das; but he rightly pointed out that the present suit was a suit in ejectment by the donees and Section 19-A of the Contract Act or Article 91 of the Limitation Act did not apply to the defence of a trespasser that the gift is not valid and did not pass any title to the donees. Hence this contention of Mr. K.K Sinha fails.

44. The next argument of Mr. K.K Sinha was that, even if the deed of gift be declared void and ineffective, the defendants-respondents could not have any legal title to the holdings in suit, because Musammat Kabutari being the widow of Sheodutt became the holder of his properties after his death for her life and these defendants could have succeeded to Sheodutta properties only after Kabutari's death. But admittedly during the life time of Kabutari the Hindu Succession Act of 1956 came into force on the 17th Tune 1956 and she became the absolute owner of the properties. Thus the holdings in suit became the Stridhan of Musammat Kabutari and Durga was the sole heir of Kabutari's stridhan properties after her death under section 16 read with Section 15 of the Hindu Succession Act. This legal position was not disputed by Mr. Das; but he contended that the court cannot take notice of any event subsequent to the institution of the suit. In support of this contention, Mr. Das cited a Division Bench decision of this Court in Lalloo Prasad Singh v. Lachman Singh*, ILR 3 Pat 224 : (AIR 1924 Pat 438), wherein it was observed that the judgment or the court must depend upon the rights of the parties at the date when the suit was instituted.

45. On the other hand, Mr. K.K Sinha relied on three decisions in which it was observed that an appellate court is entitled to take into consideration a new legislation which came into existence during the pendency of the suit or appeal (see Lachmeshwar Prasad Shukul v. Keshwar Lal Chauduri, AIR 1941 FC 5; Kamakhya Narain Singh… v. State Of Bihar, 1956 BLJR 583 : (AIR 1957 Pat 30), Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva, AIR 1959 SC 577). It is well settled that ordinarily the decree in a suit should accord with the rights of the parties as they stand at the date of institution; but this principle is not of universal application and the court may in appropriate cases depart from this rule and take notice of events which have happened since the institution of the suit and to could its decree according to the circumstances as they stand at the time the decree is made.

46. In Rai Charan Mandal v. Biswa Nath Mandal, 20 Cal LJ 107 : (AIR 1915 Cal 103), Sir Asutosh Mookerjee discussed a large number of English decisions and the decisions of the Privy Council and of the different High Courts in India and summarised the law on the subject thus:

“A suit is to be tried in all its stages on the cause of action as it existed at the date of its commencement. An exception to this rule, namely that a court may take notice of events which have happened since the institution of the suit and afford relief to the parties on the basis of the altered conditions, is applied in cases where it is shown that the original relief claimed has, by reason of subsequent change of circumstances become inappropriate or that it is necessary to base the decision of the court on the altered circumstances in order to shorten litigation or to do complete justice between the parties.”

47. The learned Judge expressed the same view in Nuri Mian v. Ambica Singly ILR 44 Cal 47 : (AIR 1917 Cal 716). This view is well settled by now; and no authority to the contrary has been brought to our notice. It is now to be seen whether the case before us falls within file exception to the general rule. In other words, whether, by taking notice of the subsequent events it is possible to shorten litigation or to do complete justice between the parties. The answer to this question, in my opinion, is in the negative. It is not a case wherein notice has to be taken merely of the provisions of the Hindu Succession Act, 1956; in view of the finding that the deed of gift was invalid, the will executed by Sheodutt still remains unrevoked; and under the will, if probated persons other than the donees under the gift would be entitled to the properties of Sheodutt. The defendants of the present suit would also be entitled to dispute the will and object to the grant of probate, because in the absence of the will they would be the next reversioners of Sheodutt. Moreover, the claim of the plaintiffs in the present suit is based entirely on the title derived from the gift. It is not possible, therefore, to shorten litigation or to do complete justice to the parties even if we take notice of the subsequent events.

48. It is also obvious that the original relief had not, by reason of subsequent events, become inappropriate, because if the gift were held to be valid, there would be no occasion to take notice of subsequent events namely, the death of Sheodutt's widow and the Hindu Succession Act 1956. In the circumstances, the ordinary rule must be followed in the present case and the suit must be decided in all its stages on the cause of action as it existed at the date of its commencement. The contention of Mr. K.K Sinha must therefore, fail. In the result, the appeal is allowed and the suit is dismissed inasmuch as the gift made by Sheodutt was invalid. In the circumstances of the case, the parties will bear their own costs of both the courts.

Kaniiaiya Singh, J.:— I agree.

LE/D.H.Z

49. Appeal allowed.