Mt. Farid-Un-Nisa v. Munshi Mukhtar Ahmad And Another

Lord Sumner. -

The plaintiff-appel lant, having sued to recover possession of a residence and agricultural land at or near Ahmadpur, the Subordinate Judge of Bara Banki passed a decree in her favour against two of the defendants, who are now res pondents to this appeal. In the Court of the Judicial Commissioner of Oudh this decree was set aside and the suit was dis missed. The plaintiff had executed a wakfnama, covering the property and appointing the respondents mutawallis of the wakf, and accordingly the claim is in substance to set the deed aside.

At the time of the execution the plain tiff was a married woman, illiterate, child less and purdahnashin. She and her husband, Sheikh Karim-ud-din, were Mo hammedans. Most of the property in ques tion had been given to her upon her mar riage by her maternal grandfather, but the residence, known as the Mahal, and some sir land, both in the village of Ahmadpur, came to her by inheritance. Since her marriage she had lived there continuously, and, although during the earlier part of their married life her husband was gene rally absent on Government service, he had retired, and for some years had resided entirely at Ahmadpur. He suffered from incurable disease, had become nearly blind, and was otherwise crippled and incapable, but his mind was not in any way affected.

The defendants, the mutawallis, who were in possession, relied upon the wakf nama, as their title. Its gist was to divest the plaintiff of the whole of her property, which become vested in them, but it reserved to her a life stipend of Rs. 34 per mensem, and another of Rs. 33 per men sem to her husband, and also gave her the right to continue to reside in "The Mahal" for life, the mutawallis being bound to keep it in repair, as well as to pay the stipends. They were two brothers, sons of a sister of the plaintiff's husband, to whom he was much attached. Their Lordships do not think it is sufficiently made out that they or either of them had acted as men of business for the appellant and they put this point aside but she was on friendly terms with them. It is said that she was at enmity with her own relations, for reasons that do not appear to reflect on her. At any rate, she virtu ally lived apart from and saw little of them, nor had she, in fact, any support or advice from their side.

Very shortly after the marriage the management of the property was assumed by the plaintiff's husband, her father, who had previously managed it, being now dead, and he continued to manage it as long as he lived. He employed the necessary karindars and others for the purpose, and directed the disposition of the rents and profits. Over and above his salary he was himself a man of little or no means. His wife never took part in the management, nor was she shown to have bad any business knowledge or ex perience. From time to time, under the direction of her husband, she executed muktarnumas and other documents for estate purposes, but she relied on him entirely as to their necessity and purport. Sums for her personal and household purposes were paid to her with fair regularity, and they seem to have been, though modest, probably, sufficient" but she did not direct the whole even of the household expenditure, and her own outlays were on various occasions criticis ed by her husband and even censured as improvident. There is this to be said for him, that the estate was encumbered and, when he took up the management, much embarrassed, but in time he considerably improved its position. The wakfnama enumerates sundry charges outstanding upon it, amounting in all to about Rs. 12,800, with an annual interest of Rs. 730, for the service and discharge of which the mutawallis were to provide, and the total value of the property, when settled by the deed, was from Rs. 40,000 to Rs. 50,000, and the income about Rs. 2,500.

The respondents recognised that the burden of proof was on them [Tacoordeen Tewary's case (1836-37) 1 I. A. 206 and they accordingly set about to prove her intelligent execu tion of the deed, its contents having been read and explained to her both upon and after execution. It was not, however, contended that she had had any legal advice about it or any consultation with her own relations. She, on the other hand, raised two answers, the first that she executed it under actual undue influence of her husband, which dominated her choice and will, and the second, that when she executed it, she had had no explanation of its nature and contents, but throughout believed it to be an instrument needed for the routine manage ment of the estate, such as she had constantly executed before. A contention, that she had never executed it and that the thumb-mark which bears is not hers, has not been persisted in.

The probabilities are not unequally balanced. She was a conforming and sincere Mohammedan, though not shown to have been of any exceptional piety. Her husband was a leper, and even if he lived, as she says she was sure that he would, his management of the estate, at any rate, was nearing its end. The estate was no easy matter to deal with, and the assurance of an income, similar to that which she had hitherto enjoyed, and the continued use of her old home for life, might seem to be a desirable arrangement. She had nothing against the young men who were named as mutawallis. They were well known to her, and as to her own people, it is not pretended that she felt either duty or inclination towards them. A gift of her property to God, with a modest provision for herself and her husband during life, was no bad thing, even though she herself was only about thirty years of age.

On the other hand, her husband had been manager of his wife's property so long that he might quite probably regard it as his own, and certainly he so treated it. He, at least, could not have failed to foresee his death at no distant date as actually befell within the year. He had no great opinion of his wife's prudence or moderation and the idea that her property might pass away from him and his must have been repulsive to him. Security for his own last days and a provision for his widow, coupled with some acquisition of merit by the performance of a pious act, must have made the idea of a wakf attrac tive to him. Though burdened with reli gious obligations, the property would, at any rate, be kept in his family.

There is a third probability. It is that the appellant may have been fully acquain ted with the scope of the deed, have fully concurred in the creation of the wakf for which it provided, and have executed the wakfnama freely and with understanding, but have changed her mind, for, after a few months of widowhood and pilgrimage, she married again.

After the fullest examination of the evidence, voluminous even for a case of this kind, their Lordships are of opinion that the wakfnama was not executed under actual undue influence of the hus band, and that, both before its execution and also shortly after its execution, when it came to be registered, its contents were read over to the appellant and were to some extent explained to her. In what terms that explanation was given the evi dence does not show, and its sufficiency becomes the real issue on this appeal.

As for the case of actual undue influence, the husband was not present when the deed was registered, and there is nothing but mere suggestion, derived from the character of the transaction and his marital relation to her, to show that, when it was executed, his will operated on hers at all. In her evidence she declared with spirit that, had she known what the real import of the deed was, she would have refused entreaties and defied threats, and would never have given the smallest portion of her property to him or his relations. There is a ring of truth about this, which must prevail over the ingenious suggestion that in the circumstances of the ease, she must be deemed, all unknown to herself, to have been chronically under the hypnotic suggestion or control of her husband, while believing and even glorying in her fancied independence.

Again, their Lordships are not prepared to reject the evidence that the wakfnama was explained to the lady before it was executed. It was open to much criticism, and the learned Subordinate Judge re fused to believe it, but the evidence had been recorded by his predecessor and he had not seen the witnesses. Their Lordships agree with the learned Judges of the Judi cial Commissioner's Court that there is no sufficient ground for its rejection. Taking it, however, as it stands, the question re mains whether it goes far enough to satis fy the burthen of proof which rests on the respondents.

The deed was registered on the 3rd November, 1914. A month or six weeks previously the appellant's husband, Karim-ud-din, being then unable to write or read sent for his nephew a young man named Jamal-ud-din, and dictated to him a wakfnama word by word. This took five or six hours. The appellant was not pre sent, and Karim-ud-din sent the young man into the house to ask her what sala ries she wished to have inserted in the deed. To this she replied by asking whe ther Karim-ud-din was getting him to write the draft. All this, which is deposed to by Jamal-ud-din, a witness called by the respondents, seems to point to some previous communication on the subject between the husband and the wife, but what it was is not known.

Daring the previous three years the plaintiff had spoken on several occasions of creating some wakf, but full details of her scheme were never given, and once at least she was dissuaded from doing any thing at all. Such details as are given show that her ideas then differed sub stantially from the scheme of the wakf nama which was ultimately executed. When Jamal-ud-din told her that a draft was being prepared she proceeded to say (i) that the salaries for herself and her husband were to be within Rs. 100 per mensem

" (ii) that certain other things were to be provided for in the deed, namely, that the rajabi and maulud, which she had celebrated, were to con tinue to be celebrated as before, that at Moharam majlis and sablis were to be continued, that other ritual acts should also be performed, and that a musjid at Ahmedabad (sic Ahmedpur) which her mother's father had built and she her self had always caused to be cleaned and repaired should be cleaned and re paired as before"

(iii) that a plot of land, which she had given to a certain Kabir-ud-din for a house should not be included in the wakfnama at all. All this Jamal-ud-din says that he reported to Karim-ud-din, who agreed to the provisions required. He was then sent back to the appellant to ask whether some provision should be made for pay ment to the mutawalli, to which she replied that one-third of the Rs. 100 provided for her husband and herself should be paid to him as his pension. Jamal-ud-din then completed his task and as far as he remembers, the draft then provided for all the matters which the appellant had required. He placed it in her custody, and to her question replied that all her requirements had been provid ed for. He did not see the plaintiff again till after the registration of the wakfnama, nor did he see the draft again either. In fact, it was never put in evidence, nor did any witness prove that the draft, as it left the hand of Jamal-ud-din, was ever compared with the fair copy which the plaintiff ultimately executed. The evidence is merely that one, Mustafa Husain, a brother-in-law of the defendants, engaged a person named Wazir-ud-din to make a fair copy of this draft, because he could write a good hand, and, on getting the draft from the plaintiff, read it over and he says, apparently from memory two years afterwards, that this draft and the draft ultimately executed were the same, except for the mention of a debt to Wazir-ud-din of Rs. 400 for procuring the neces sary stamped paper a matter only arranged after Jamal-ud-din's draft was prepared.

All this is absolutely denied by the plaintiff, but, as the whole of her evidence cannot be due, and as the evidence given by Jamal-ud-din and Mustafa Husain is confirmed by other witnesses, their Lord ships accept this story generally.

The form of the deed itself thereupon becomes of some importance. It is lucidly and logically drafted with much more of a lawyer's phraseology and orderly arrange ment and much less of a layman's irrele vance and colloquialism, than such deeds in India often contain. It differs, however from the account given by Jamal-ud-din in several particulars, and no one suggests that, between the time when he gave her his draft and the time when Wazir-ud-din read over his fair copy to her before she executed it, she was ever told of any de parture from the terms, in which her wishes had originally been expressed.

The following differences are material. Clause 2 states that the plaintiff appoints the first defendant, "whom I have brought up and treated as my son," to the office of mutawalli, and continues "from to-day I have put Mukhtar Ahmad and Iftikhar Ahmad in possession of the said property as mutawallis." As a matter of fact this admittedly was an after thought. Mukhtar Ahmad, the first defendant, on hearing of the wakf (though not from the plaintiff) said that, as he was busy, he wished his younger brother Iftikhar to be joined as a mutawalli. Accordingly this was done, and as by a subsequent clause, No. 12, each mutawalli was to have Rs. 33 per mensem, the sum of Rs. 100, which the plaintiff had fixed to cover the stipends of herself, her hus band, and the one mutawalli, whom alone she had in view, now became an aggregate of monthly stipends of Rs. 133.

Clause 20 specified how the mutawalli was to expend the surplus income, after payment of Government revenue, the expenses mentioned, and all other necessary expenses as to the management. He was to do so "after taking into con sideration the then existing circumstances of the wakf property and as to what sum is reasonable to spend, when and on one or more of the following purposes" - twelve in number. These purposes, except "repairs of the mosque in Ahmadpur," are express ed in general terms. The last sweeps in other expenses on pious objects, which may come up." Subsequent provisions give further powers "beside these ex penses. . . . . . to spend money or [Query "on"] anything without the permission of the authority for the time being having power to interfere with the affairs of the wakf," and "if any of the objects mentioned in clause 20 is void in law the mutawali shall spend the money on any other legal object" (clause 21). Among the twelve objects particularly named there occur quite generally some of the pious purposes named by the appellant to Jamal-ud-din, though one is omitted. In no case is there mention of the continuance of those ceremonies, which the appellant herself had performed. The objects supported by the mutawalli under these denominations might in his discretion be wholly divorced from those which the plaintiff had prescribed, and might be entire unconnected with her or her place of residence in Ahmadpur. The question at once arises, "Was the appellant ever really made aware of these discrepancies, and did she assent to them ? As a formally valid instrument the wakfnama itself is not impugned, and their Lordships therefore do not criticise it. The real question is, whether the appellant was so made cognisant of its Contents and purport that it can be said, that the respondents have discharged the onus of showing that he understood it so as to make it her deed.

The law of India contains well-known principles for the protection of persons, who transfer their property to their own disadvantage when they have not the usual, means of fully understanding the nature and effect of what they are doing. In this it has only given the special de velopment which Indian social usages make necessary, to the general rules of English law, which protect persons, whose disabilities make them dependent upon or subject them to the influence of others, even though nothing in the nature of deception or coercion may have occurred. This is part of the law relating to personal capacity to make binding transfers or settlements of property of any kind. That the instrument here is a wakfnama is a mere accident, and the general and well-settled law of wakf is not in question. The case of an illiterate purdahnashin lady, denuding herself of a large proportion of her property without professional or in dependent advice is one on which there is much authority. Independent legal advice is not in itself essential [Kali Buksh Singh's case (1914) 36 All 81 : 41 IA 23 : 16 OC 378 : 18 CWN 282 : 12 ALJ 115 : 15 MLT 130 : 19 CLJ 172 : 1 OLJ 67 : 26 MLJ 121 : (1914) MWN 112 : 21 IC 985 : 16 Bom LR 147 (PC)]. After all, advice, if given, might have been bad advice, or the settlor might have insisted on disregarding it. The real point is, that the disposition made must be substantially understood and must really be the mental act, as its execution is the physical act, of the per son who makes it [Wajid Khan's case, (1891) 18 Cal 545 : 13 IA 144 : R and J's No. 123 (Oudh) : 6 Sar. 46 (PC) Sunitabala Debi's case, AIR 1919 PC 24: 47 Cal 175 : 46 IA 272 : 37 MLJ 483 : 17 ALJ 997 : (1919) MWN 821 : 22 Bom LR 1. : 24 CWN 297 : 53 IC 131 : 11 LW 227 (PC)]. The appel lant clearly had no such advice, nor is it contended that she had. If, however, the settlor's freedom and comprehension can be otherwise established, or if, as is the respondent's case here, the scheme and substance of the deed were themselves originally and clearly conceived and de sired by the settlor, and were then sub stantially embodied in the deed, there would be nothing further to be gained by independent advice. If the settlor really understands and means to make the transfer, it is not required that someone should have tried to persuade her to the contrary. Again, the question arises how the state of the settlor's mind is to be proved. That the parties to prove it are the parties who set up and rely on the deed is clear. They must satisfy the Court that the deed has been explained to and understood by the party thus under disability, either before execution, or after it under circumstances which establish adoption of it with full knowledge and comprehension [Sudisht Lal's case (1881) 7 Cal 245 : 8 IA 39 : 4 Sar 222 (PC)" Sham Koer's case (1902) 29 Cal 664 : 29 IA 132 : 6 CWN 657 : 4 Bom LR 547 : 8 Sar 280 (PC)" Sajjid Hussain's case (1912) 34 All 455 : 39 IA 156 : 16 CWN 889 : 23 MLJ 210 : 10 ALJ 364 : 16 CLJ 613 : 14 Bom LR 1055 : 12 MLT 361 : (1912) M WN 976 : 16 IC 197 : 15 OC 271 (PC)]. Further, the whole doctrine in volves the view that mere execution by such a person, although unaccompanied by duress, protest or obvious signs of mis understanding or want of comprehension, is in itself no real proof of a true under standing mind in the executant. Evidence to establish such comprehension is most obviously found in proof that the deed was read over to the settlor and, where necessary, explained. If it is in a langu age which she does not understand, it mast, of course, be translated, and it is to be remembered that the clearness of the meaning of the deed will suffer in the process. The extent and character of the explanation required must depend of ? circumstances. Length, intricacy, the number and complexity of the disposi tions, or the unfamiliarity of the subject-matter, are all reasons for requiring an increased amount and efficiency of expla nation. Thus a matter not likely to at tract the attention of the executant in itself ought not to be relied on as binding, unless her attention has been directly drawn to it [Sham Koer's case (1902-03) 29 IA 137]. So if the deed, as presented for execution, differs substantially, either by way of addition or of omission, from the scheme and details which the intending settlor has previously laid down, the discrepancy ought to be clearly pointed out and its nature and effect should be fully described, unless, which must be rare, the difference is so obvious, that even a person in the settlor's position must perceive and appreciate it for herself. If the description and expla nation have been partial or erroneous, or have not been given at all, the question will then arise, as it arises where there has been no independent legal advice, whe ther, if proper information had been given, it would have affected the mind of the exe cutant in completing the deed. On the other hand, the doctrine cannot be pushed so far as to demand the impossible. The mere declaration by the settlor, subse quently made, that she had not understood what she was doing obviously is not in it self conclusive. It must be a question whe ther, having regard to the proved person ality of the settlor, the nature of the settle ment, the circumstances under which it was executed, and the whole history of the parties, it is reasonably established that the deed executed was the free and intelli gent act of the settlor or not. If the answer is in the affirmative, those relying on the deed have discharged the onus which rests upon them. Of course fraud, duress and actual undue influence are separate matters.

In the present case it is quite clear that certain matters were not brought to the appellant's notice before the deed was exe cuted, or at all. Not only was a second mutawalli with an additional salary intro duced into the draft which was executed, but it made no provision for the settlor's desires as to the maintenance and repair of the mosque in Ahmadpur and as to the various religious ceremonies mentioned by her to Jamal-ud-din, beyond including them among the objects on which the mutawallis might expend the wakf funds, if and so far as they thought proper. As the deed stands, the mutawallis could decline to continue any of the special pious observances which the appellant desired to continue and could leave her to maintain them herself out of her diminished income and to die in the knowledge that, with her, these objects would have no one left to care for them.

Their Lordships cannot regard these matters as insignificant or such as the plaintiff could reasonably be supposed not to insist upon. She was a woman of pro perty, who had lived all her married life in her own family-house, hard by, as it would seem, to the mosque erected by her rela tions. Hers had been a lonely and restrict ed existence. Karim-ud-din, as a husband, was in many respects a very disappointing person. His own means were small, and for many years his official duties caused him to reside at a distance. She was herself piously disposed, and it was eminently natural in such a woman under such cir cumstances that she should attach import ance to the instructions which she gave to her husband through Jamal-ud-din. Her piety may well have manifested itself pri marily in her care for the mosque, which her family had founded, and for the cele bration of the observances to which she herself had diligently attended. If she had really appreciated that in none of these cases was that perpetual continuance as sured, which was evidently dear to her mind, their Lordships are far from being satisfied that she would have patiently sub mitted to her disappointment and have ac cepted intelligently and without a word the surrender of her own performances to the discretion of the mutawallis. The only prudent and probable conclusion is that, as the words were read over to her, she failed, very naturally, to observe the change. She would here mention of the mosque and of nearly all the ceremonies by name, and would easily miss the difference between the inclusion of these objects in the powers of the mutawallis and the prescrip tion of these objects as obligatory charities to be maintained by the mutawallis in any event. They are confirmed in this view by observing that, until a late stage in the argument before the Board, this precise discrepancy between the first draft of the wakfnama and its ultimate form had not attracted the attention of anybody, either in the Courts below or on this appeal. No doubt, where so many other points were in contest, this one might well pass unobserved, but this circumstance only makes it the more likely that the appellant could not herself detect what has, in fact, eluded the vigilence of counsel and judges during two protracted hearings. It is not proved when or by whom the original draft was remodelled. There is no evidence that Wazir-ud-din so much as knew that the appellant had given any particular instructions before the scheme was put into writing, and be could not draw the appellant's special attention to something that he never knew. Upon the story told by the respondent's witness es there never was any chance that those, who explained the deed, should point out these matters, and it is certainly not enough to say that, if the appellant cared about them, she should herself have asked about them, especially as the form of the deed was such as might well have misled her into taking it for a provision of all that she desired. From this point of view the ap pellant's subsequent action does not assist the respondents. Registration and mutation were promptly asked for by those interest ed in supporting the deed, and the plaintiff herself attended the proceedings without protest. These circumstances are in them selves very favourable to the respondents' case, but the registering officer, who says that he read and explained the deed to her, knew as little of the above-mentioned dis crepancies as did Wazir-ud-din, and the appellant's answers are quite consistent with her being in ignorance of a change, of which no one had informed her. As the respondents have to bear the onus of bring home to her mind the actual import of the deed, they cannot rely on the fact that the appellant's own evidence is un trustworthy, for it is by the evidence of their own witnesses alone that this defect is established, and by that evidence they must stand. The conclusion that they have failed to discharge the burthen of proof is one arrived at not out of any consideration for this lady in particular, but in defence of those strict rules which have been laid down for the protection of the defenceless in India, and it is a matter of obligation upon their Lordships to be strict and unwavering about it. They will accordingly humbly advice His Majesty that the appeal should be allowed and that the decree passed by the learned Subordi nate Judge should be restored with costs here and in both Courts below.

Appeal allowed.