1. The plaintiffs, the widow and the daughters of Syed Imtiaz Husain, who died on 31st January 1988, filed this suit for possession of certain properties in villages Karari and Hasanpur on the allegation that the properties in suit belonged to Imtiaz Husain. On the death of Imtiaz Husain they had filed an application for mutation of their names, but certain objections were filed by the defendant, Mt. Abbasunnissa Bibi, sister of Imtiaz Husain and Mt. Khatamunnisa Bibi, mother of Imtiaz Hussain and the objections were allowed by the revenue Court; hence the suit. Mt. Abbasunnisa Bibi in her written statement pleaded that the property in suit did not belong to Imtiaz Husain but to Akbar Husain, father of Imtiaz Husain and Abbasunnisa Bibi. On the death of Akbar Husain about the year 1924 his property was inherited by his widow, Khatamunnissa Bibi, and his son and daughter, Imtiaz Husain and Abbasunnisa Bibi. The parties are Shia Mahomedans and their shares were as laid down in the Shia law. According to the defendant, the parties were in possession of their respective shares, though the entire property was being managed by Imtiaa Husain who was the only male member of the family and he was realising the entire rent. It was pleaded by the defendant that on 7th September 1929 Imtiaz Husain got from the defendant as well as from Khatamunnisa Bibi, their mother, two documents which were deeds of gift. According to the defendant, she and her mother did not know that they were deeds of gift and their signatures were obtained on the two deeds on the representation that they were needed merely for purposes of facility of management, as there was some trouble in the year 1929 in realisation of rent from the tenants, due to movements started for non-payment of rent. That Imtiaz Husain, however, continued to pay her and her mother their share of the rent and in the year 1937 just before his death on 3lst December he made an oral gift by which he returned the property. Imtiaz Husain had a stroke of paralysis on 30th December 1937. On 12th January 1938 he had a second stroke and on 31st January 1938 he died. Mt. Khatamunnisa Bibi survived him and she died on some date in the year 1939.

2. The learned Munsif in a very careful judgment went through the evidence and the circumstances and accepted the. defendant's case both as regards the first two gifts of 7th September 1929 and the second gift dated 3lat December 1937 and dismissed the plain-tiffs' suit. The plaintiffs appealed. The lower appellate Court allowed the appeal, set aside the decree of the trial Court and decreed the plaintiffs' suit. The defendant has filed this second appeal. It is argued on behalf of the defendant that the two gifts dated 7th September 1929 were said to have been executed by furdahnashin ladies in favour of Syed Imtiaz Husain who was the brother of one and the son of the other and thus stood in a position of fiduciary relationship to them. It is said that the lower appellate Court did not appreciate the law relating to purdahnashin women and failed to record the necessary findings which could justify its setting aside the decree of the trial Court. According to learned Counsel it was not only necessary for the plaintiffs to prove due and proper execution of the deeds of gift but it was further necessary to prove that the ladies had received independent advice. On behalf of the plaintiffs it is urged that the finding recorded by the Court below that the gift deeds were executed by the defendant and her mother intelligently after having fully understood their contents was enough to dispose of the case in favour of the plaintiffs and that under the law it I was not necessary to consider whether the donors had any independent advice. It was I further pleaded that it was clear from the I statement of Eamzan Husain, defendant's I witness, that Mohammad Halim, Mukhtar, was consulted.

3. It is not disputed now that the property I in suit belonged to Akbar Husain and; on his death, his widow Mt. Khatamunnisa had I a share in the property and that the rest of I the property went to his son and daughter, I the son getting a share twice as big as the I daughter. It is further not denied that Imtiaz Husain was managing the property on behalf of the two ladies before the alleged I gift-deeds dated 7th September 1929. There I is no mention made of the gifts in the plaint I and there is, therefore, no explanation given in the plaint, nor is there any reason given by the witnesses for the plaintiffs, so far as have been able to find out, why the I donors gave away their entire inheritance to Imtiaz Husain. The defendant's case was that the deeds were executed for facility of management and the executants never understood that they were parting with their title to the property. It was further the defendant's case that she was, as a matter of fact,. receiving benefit from this property inasmuch as her share of the profits was given to her by Imtiaz Husain and was later sent to her son to help him in his education in a a college at Allahabad. The lower Court has not entirely disbelieved this case of the defendant that Imtiaz Husain was helping the defendant's son at Allahabad, but it has said that it was on grounds of charity because he was the maternal uncle. The trial Court relied on various decisions of this Court and of the Privy Council and held that in view of the fact that Imtiaz Husain was a person who was in a position of fiduciary relationship to the defendant and to his mother, it was necessary for the plaintiffs to prove that they had received independent advice. That it was absolutely necessary for the plaintiffs to explain the origin of the transactions and to tell the Court how the defendant was actuated with the desire to benefit her brother when she had a family of her own to support and look after. The lower appellate Court, however, did not approach the case, from that point of view at all. Though the plaintiffs have given no explanation for the gifts the lower Court in its judgment has said that it would have been difficult for the defendant to manage her small share from the village where she was residing with her husband and, therefore, she made the best use of her share, i.e., gave it away to her brother. Learned Counsel has argued that the findings recorded by the Court below are legally insufficient to prove the validity of the gifts.

4. Mr. Shekhar Saran on behalf of the appellant has argued that, as the deed of gift was in favour of a person who stood in a fiduciary relationship to his client, it was necessary for the lower appellate Court to consider whether his client had independent advice and record a finding on that point. Mr. H.K. Mahmud, for the plaintiffs, has urged that, though in some of the earlier cases it was laid down that independent advice was necessary, now the law is clear that no such advice is required and all that a person relying on such a document need prove is intelligent execution by a purdah, nashin woman. It is not necessary at this stage to discuss the various rulings that were cited before me by counsel, either for the appellant or for the respondents. I want to briefly summarise the law, as I understand it, relating to purdahnashin women. Whenever a document executed by a purdahnashin woman is relied upon in a Court of law, it is necessary for the plaintiff to prove not only its execution by her but that the document was executed by her after having fully understood its contents. The simpler and more straightforward a transaction and the language of the deed, the lighter is the burden on the person relying on the same; The more complex the transaction or more obscure the language or more complicated the rights affected by the transaction, the heavier would be the burden to prove that a purdahnashin woman knew what she was about and fully understood the nature of the transaction and the rights affected thereby. In the case of a document executed by a person other than a purdahnashin woman all that a person relying on the deed has to do is to prove its due execution and it would then be for the executant to prove the circumstances which would make the document invalid or not binding on him, by reason of the fact that his consent was obtained by fraud, undue influence or under duress or on any other ground. In the case of document executed by a purdahnashin woman it is not enough to prove mere execution by her but it is further necessary to prove that she understood what she was doing. In the oft-quoted words of the Privy Council it should be not only her physical act but her mental act as well. The quantum of proof required would vary from case to case according to the nature of the document relied upon, the language in which it was couched and the proof of the capacity of the woman to understand its contents. The law in India is, to this extent, so far as I know, different from the law in England, as there is no such special class in England to which this peculiar protection is given.

5. If a person who stands in a fiduciary relationship to another has certain benefits conferred on him by the other, specially if the transaction is a gratuitous transfer, like a gift, the burden lies heavily on him to establish the circumstances under which the benefits were conferred on him-and whether the executant had full and independent advice. Such independent advice becomes still more necessary where the benefits were conferred by a purdahnashin woman who is less able to protect her interest than others. The question whether undue influence should be presumed in a case where there is a gratuitous transfer in favour of a person who is in a position of confidence has come up in several cases in England. The Court of equity have always taken the view that the burden lies on the person, who holds such a position of confidence, to prove that the transaction was a fair transaction entered into by the transferor of his or her own free will or volition. In a case where the benefit conferred is a very small one or the transaction, on the face of it, is such that the Court does not require any further proof of want of undue influence, the transaction may be upheld, but in a case like the present, where the two purdahnashin women transferred all that they had received by inheritance, and it was admitted that they were not well off, and further there was no Reason suggested either in the plaint or in the oral evidence why they should have parted with the entire property that they had inherited, the burden lay heavily on the plaintiffs to prove that the donors had independent advice and the transactions were not invalid by reason of undue influence exercised by Imtiaz Husain. In Allcard v. Skinner (1887) 36 Ch. D. 145 dealing with the group of cases where the position of the donor to the donee had been such that it was the duty of the donee to advise the donor or even to manage the property of the donor, as in the present case, Lindley L.J., held that:

the Court throws upon the donee the burden of a proving that he has not abused his position, and of proving that the gift made to him has not been I brought about by any undue influence on his part, a In this class of cases it has been considered necessary to show that the donor had independent advice I and was removed from the influence of the donee when the gift was made.

Again in Rohodes v. Bate (1866) 1 Ch. A. 252, at page 257, I Turner L.J., held that:

persons standing in a confidential relation towards I others cannot entitle themselves to hold benefits a which those others may have conferred upon them, a unless they can show to the satisfaction of the I Court that the person by whom the benefits have 1 been conferred has competent and independent a advice in conferring them.

6. The exception to this rule mentioned by his Lordship is, a mere trifling gift to a person standing in a confidential relation. I have already said that the case before me cannot come under that exception. The donors gave away all that they could and there is no explanation why it was necessary to give away their entire inheritance, To the same effect is the decision of Farewell J. in Powell v. Powell (1900) 1 Ch. 243 that it was the duty of the person giving the independent advice, in that case a solicitor, who was acting for both parties, "to protect the donor against himself and not merely against the personal influence of the donee." The point arose before their Lordships of the Privy Council in an appeal from the Supreme Court of Canada, Bank of Montreal v. Jane Jacques (1911) A.C. 120, and the principles enunciated above were affirmed. In Lancashire Loans Ltd. v. Black (1934) 1 K.B. 380, a married daughter had after her marriage taken upon herself the liability to pay certain debts incurred by her mother. The only advice she had was from the solicitor who was acting also for her mother. It was held that:

the daughter was under the undue influence of her mother and that she had no independent advice and as the money-lenders had notice of the fact which constitutes undue influence on the part of the mother, they were in no better position than the mother, and the daughter was not held bound by the transactions.

It may not be out of place to meption here that their Lordships of the Privy Council have in Inchenoriah v. Sheikh Alli ('29) 16 A.I.R. 1929 P.C. 3 held that the presumption of undue influence arises in cases of gifts inter vivos and not to the same extent in transactions donatio mortis causa. Learned Counsel on both sides have cited before me all the cases from the earliest times relating to purdahnashin women, and while the counsel for the appellant has argued that independent advice was necessary before a transaction like the present could be validated, learned Counsel for the respondent has argued that the later rulings of the Privy Council make it quite clear that the view has undergone a change and the earlier observation of their Lordships that independent advice was necessary was no longer good law. To my mind, the position is, as I have explained above, that whenever a document executed by a purdahnashin woman is placed before a Court, it is the duty of the person relying on the document to prove that she knew what she was about, i.e., it was her mental act. But where the document is in the nature of a gift to a person who stands in a position of confidence to the donor, it is further necessary to prove that the donor had independent advice. As the learned Judge of the Court below has taken the view that in this case independent advice was not necessary and has recorded no finding on that point, I think it is a fit case which should be remanded to the lower appellate Court. The trial Court had held in favour of the defendant appellant that she was not bound by the transactions. The lower appellate Court set aside those findings on an incorrect view of the law. I, therefore, allow this appeal, set aside the decree of the lower appellate Court and send the case back to that Court for rehearing of the whole appeal and for decision in accordance with law. The appellant will be entitled to her costs of this appeal. The costs of the trial Court will abide the result.