Dawson Miller, C.J:— This is an appeal by some of the defendants from a decree of the officiating Subordinate Judge of Shahabad pronouncing in favour of the plaintiffs title under a deed, dated the 14th March, 1917, executed by their mother Mussammat Bhagela Kuer, conveying a half-share in her property to the plaintiffs and declaring an earlier gift by Bhagela Kuer, under an instrument, dated the 7th January, 1908, conveying the bulk of her property to her grandsons, null and void.
The plaintiffs, who are the respondents in this appeal, are the two younger daughters of the late Babu Raghunath Charan Singh and his widow Bhagela Kuer. The principal defendants in the suit are Mussammat Dharamraj Kuer and Mussammat Chhabi Raj Kuer (defendants 1 and 2) who are sisters of the plaintiffs, Mahadeo Singh, Inderdeo Singh and Tilakdhari Singh (defendants 3 to 5) who are sons of Dharamraj Kuer, and Baijnath Singh (defendant No. 10), the husband of Dharamraj and Chhabi Raj.
The defendants 6 to 9 are other sons of Baijnath Singh. The defendant No. 11, Mussammat Kowla Kuer, is the sister-in-law of the plaintiffs and, the first two defendants, being the widow of their deceased brother Bachu Singh. The defendants 12 to 18 are transferees of some of the property in suit from the defendants 3 to 5 and the defendant No. 19 Mussammat Bhagela Kuer is the mother of the plaintiffs and the first two defendants.
The plaintiffs do not deny that the earlier gift of 1908 was executed by their mother Bhagela Kuer but contend that she signed the same under the impression that it was a gift of her property in favour of her four, daughters in equal shares and that her signature was obtained by the fraud of Baij Nath Singh, the husband of their sister Dharamraj, who falsely represented that the document was a gift in favour of her four daughters in equal shares in accordance with her expressed intention, whereas in fact it was a gift of the bulk of the property to the three sons of Baijnath Singh and Dharamraj his wife, a small portion only being conveyed to the other three daughters and to the daughter-in-law Kowla Kuer. They claim that the gift of January, 1908, be declared void and inoperative and that they may be given possession over a half-share of the property in accordance with the instrument of the 14th March, 1917.
The appellants deny the alleged fraud and contend that the instrument of 1908 in fact carried out the expressed wishes of their mother and was read over to and understood by her before execution. They further contend that in any case the gift of 1908 was not void, even if it did not express the intentions of the donor, but voidable only, and that the plaintiffs cannot maintain an action on the later deed until the earlier one is set aside, and, as the donor Bhagela Kuer was not a plaintiff and had not sued to have it set aside, the suit should be dismissed. They have raised a further point in this appeal which does not appear to have been specifically raised before the trial Court, namely, that the instrument of the 14th March, 1917, relied on by the plaintiffs, was a gift, requiring attestation by two witnesses, and is not admissible in evidence as none of the alleged attesting witnesses had been called to prove it as required by section 68 of the Evidence Act and further that even if admitted as evidence the document itself did not purport to be and was not properly attested. They further raised a question of estoppel.
The learned officiating Subordinate Judge before whom the case came for trial held that, if the facts alleged in the plaint were proved, the gift of 1808 would be void ab initio and that it would not be necessary in such circumstances to have it set aside before the plaintiffs could assert their title under the later instrument. He further found that the signature of Bhagela Kuer was obtained by the fraud of her son-in-law Baijnath Singh, and did not express her intentions, and that she never consented thereto. He further found that Mussammat Bhagela Kuer between 1908 and 1917 had no knowledge of the real contents of the earlier document; and that no circumstances had been made out which would operate as a bar to the suit by way of estoppel arising from the conduct of Bhagela Kuer. He accordingly found in favour of the plaintiffs and awarded them possession of a half-share in the property under the deed of 1917 together with mesne profits subject to certain maintenance charges and subject to a conveyance of mauza Ghanti to the defendants 12 to 18 under a deed of sale, dated the 29th March, 1914, which was found to be for legal necessity.
From this decision Baijnath Singh, his wife Dharamraj, his sons Inderdeo and Tilakdhari and his grandson Raj es war Prasad, the son of the defendant Mahadeo Singh deceased have appealed.
Babu Raghunath Charan Singh, the husband of Mussammat Bhagela Kuer died in the month of July, 1907, leaving property in some 20 villages the income from which is alleged to be about Rs. 8,000 per annum. He also left debts amounting to over Rs. 30,000. His only son Bachu Singh had died some 18 months before his father but in addition to his widow he left surviving him the four daughters already referred to. Raghunath Charan Singh was greatly afflicted and suffered much mental distress by the death of his only son and there can be no doubt that his death was hastened if not directly due to his bereavement. His widow says that it was the cause of his death. The deceased son left a widow Mussammat Kowla Kuer who has been added as one if the defendants in the suit. Bhagela Kuer, as next heir to her husband, succeeded to his property taking, a Hindu widow's estate. The eldest daughter Dharamraj was at the time of her father's death the only married daughter, her husband being Baijnath Singh, the defendant No. 10. She and Baijnath had at that time three sons Mahadeo Singh, deceased. Inderdeo and Tilakdhari, but other sons were born to them before the institution of this suit and were made defendants. On the death of Raghunath Charan Singh, Baijnath Singh with his wife and three children left their home in the United Provinces and went to live with the widow Bhagela Kuer at Barauna, and, at her request, Baijnath took over the management of the estate and transacted all business on her behalf, she being a pardanashin lady. Before this, however, it appears that Dharamraj did, from time to time, after her brother Bachu's death, live with her children in her father's house at Barauna and her third son Tilakdhari was born there, in 1907, during her father's life-time.
It is the appellants' case that Raghunath Singh had a great affection for his grandsons and after his son's death frequently expressed a desire to make over his property to them after making some provision by way of maintenance for his three daughters and his daughter-in-law. He was anxious that his debts should be discharged before his death but was not in a fit condition to attend to business and the grandsons were to be charged with the liquidation of his debts out of the estate in their hands, and thus he would be relieved from the burden of debt which, unless discharged, would militate against his happiness in the next world. It is also suggested that Raghunath was not on good terms with his gotias and was afraid that they might endeavour to obtain the property and involve the estate in litigation after his death if no settlement was made, which was another reason for wishing his property to be settled upon his male descendants. Raghunath himself had made this suggestion to Baijnath about 3 months after his son's death and had sent his nephew Bhuneshwar Singh to take him and his family to Barauna. His wife and his two sons did in fact go to Barauna at that time and the third son Tilakdhari was, as stated, born there. Baijnath himself went there three or four months later. Raghunath made no secret of his desire that the property should be given to the three grandsons and according to the appellants he named the mauzas to be given to each daughter for their maintenance and expressed a desire also that something should be given to the daughter-in-law but no document was executed in his life-time. In January, 1908 about six months after Raghunath's death, a draft deed was prepared by a pleader named Narsingh Sahai who went to Barauna to take instructions from the widow for that purpose. According to the appellants both the draft, and the fair copy, prepared by the scribe Shyam Charan Lal, were read over and explained to Bhagela Kuer who approved them and the document was executed in the presence of four attesting witnesses on the 7th January, 1908. The document recites that the disposition made therein was in accordance with the wishes of the donor's deceased husband who, during his life-time, had expressed a wish that property yielding an annual income of Rs. 360 should be given to his daughter-in-law Mussammat Kowla Kuer for her maintenance during her life and that property yielding an annual income of Rs. 600 should be given to each of his three unmarried daughters and the remainder to his three grandsons Mahadeo, Inderdeo and Tilakdhari and adds:
“that as my husband Babu Baghunath Charan Singh died without executing any deed in the above terms as desired by him he at the time of his death instructed me to execute it deed in the terms desired by him.”
It, further recites that the donor is confident that her said grandsons and daughters will properly serve and maintain her and remain obedient to her during her life time and at her death will perform her funeral ceremony in a fitting manner. It then gives a life interest in mauza Ismail pore, Kalan II, to her daughter-in-law Mussammat Kowla Kuer and to her daughter Chhabir is life interest in mauza Parbatpur with remainder to her sons and grandsons, if any; to her daughter Brij Raj a similar interest in mauza Ismailpore, Kalan I, and to her daughter Grirj Raj a similar interest in mauzas Kota and. Jagdishpur. The balance of the estate is given to her eldest daughter Dharamraj and her three sons Mahadeo, Inderdeo and Tilakdhari Singh. The grandsons are charged with the obligation to pay up immediately all debts which are at present standing, or which would be contracted hereafter, by sale or by any other transaction or by any other possible means so that the whole of the estate left by her husband in by after liquidation of the debts remain free and unencumbered. They are also charged with the expenses connected with the marriages of the three younger daughters which are to be paid out of the income of all the elakas. They are further charged with the maintenance of the widow and the expenses of her funeral ceremony and the performance of the Gayasradh of her husband in a fitting manner. They are further charged with the completion of a temple which her husband had begun to build at Barauna and with the installation of the image of the deity Sri Sri Sheoji Maharaj and the performance of the puja, etc. Bhagela Kuer was illiterate but at her request her name was written by an old servant of the family, Pradhan Ajodhya Prasad, since deceased. It is witnessed by four witnesses, three of whom were called at the trial, and is certified by the scribe, who was also called as a witness, to have been read out and explained to the executant. It was registered at the residence of Bhagela Kuer on the 12th January, in the presence of the Sub-Registrar before the executant who admitted execution and who was identified by her nephew, Bhuneshwar Singh, her sister's son. On that occasion her signature was also made by the pen of Ajodhya Prasad and Bhagela Kuer made her thumb impression on the document. On the 26th January, an application was made to enter the names of the donees in Registered in the Land Registration Department. An objection was filed by one Rajinder Narain Singh, a gotia of Raplmnath Charan Singh, on the 12th March, 1908, claiming that he had been adopted by the deceased in January, after the death of his only son and was entitled to have his name registered as the owner of the property. Witnesses were called both on behalf of the applicants and on behalf of the objector in those proceedings. On that occasion the deed of gift was put in evidence and proved by two of the attesting witnesses and by Ajodhya Prasad and the execution of the deed was in fact admitted by the objector. His claim to have been adopted by Raghunath Charan Singh was not supported by any credible evidence and his objection was dismissed and the petitioners' names were entered in the Register. In August, 1908, Mussammat Bhagela Kuer executed a mukhtarnama constituting Baijnath Singh her general agent. This document recites the gift previously made in January, that year to her grandsons and daughters. In September, 1910, upon a petition to the District Judge of Arrah, Mussammat Bhagela Kuer was appointed guardian of her three grandsons Mahadeo, Inderdeo and Tilakdhari, and the properties in the possession of the minors under the deed of gift are therein referred to and set out in detail in the schedule. In March, 1913, mauza Ghanti-Bargawan, one of the properties transferred to the grandsons under the deed of gift was sold for a sum of Rs. 17,600 in order to pay off certain existing debts. This document was executed by Bhagela Kuer as guardian of her three minor grandsons, she having previously obtained sanction from the District Judge of Arrah to sell the property. In May, 1915, the District Judge, not being satisfied with the manner in which the property was being managed by the guardian, deputed Mr. H.T Christian, the Sub-divisional Officer of Bhabua, to proceed to Barauna and make enquiries and report as to the appointment of another guardian of the minors' properties. Mr. Christian who has been called as a witness on behalf of the appellants proceeded to Barauna, his instructions being to enquire into the accounts and to recommend a manager in consultation with Bhagela Kuer. He had an interview with that lady and also with Baijnath Singh. He discussed with Bhagela Kuer the question of appointing a manager of the minors' property and she expressed a desire to have Baijnath Sinsh appointed Manager adding “Yih log ka chiz hai”, from which I think it may reasonably be inferred if this evidence is accepted, and I see no reason for rejecting it, that Bhagela Kuer at that time considered the property as belonging to Baitjnath's family. Mr. Christian made a report that the income of the estate was about Rs. 4,300 a year exclusive of the rents of villages already assigned to debtors under usufructuary mortgages, and made certain suggestions as to reducing expenses and providing for paying off the debts. He states that the late guardian Bhagela Kuer had given a very low estimate of the income from the lands and it seems obvious from this that she must have discussed the income of the property of her grandsons of whom she was guardian.
[The judgment then proceeds to discuss the evidence at length and finds that Mussainmat Bhagela Kuer was aware of the contents of the deed of gift of the 7th January, 1908, and that it was duly executed and attested.]
There is, however, a further point taken by the appellants before us in this appeal which is fatal to the respondents' case. The document of 1917 relied upon by them, although it purports to be a sale, is, in my opinion, undoubtedly a gift, as no consideration passed or was ever intended to. It therefore required to be attested by at least two witnesses under section 123 of the Transfer of Property Act. Such attestation can only be effectually performed by those who are actually present at the execution of the document and an attestation made merely on the acknowledgment of the executant is not a compliance with the section. After some difference of opinion in the Courts in India upon this question it was finally set at rest by the decision of the Privy Council in Shama Patter v. Abdul Kadir in the sense which I have just indicated. Again, in Ganga Pershad Singh v. Ishri Pershad Singh the actual witnessing of the signature of the executant was insisted on. In the document relied on by the respondents the attestation by each of the attesting witnesses is said to be on admission by the executant and none of the attesting witnesses was called to prove the document as required by section 68 of the Indian Evidence Act. It appears, however, that this document was admitted without objection at the trial. It was contended on behalf of the appellants that, even so, it could not be received in evidence unless one at least of the attesting witnesses was called to prove it, and the recent case of Sudhanya Kumar Singha v. Gour Chandra Pal was relied on in support of this contention. I am not prepared, however, to go to the length of that case. It seems to me that formal proof of a document even when it is required to be proved in a certain way may be waived by any of the parties whose interests it may affect, and this seems to me to be in accordance with section 58 of the Evidence Act. But, although proof of the document may be waived this does not affect the legal character of the document or its validity as a gift. As in the case of mortgages under section 59 of the Transfer of Property. Act, so in the case of gifts of immovable property, under section 123 of that Act they can only be effected by a registered instrument signed by the mortgagor or the donor and attested by at least two witnesses. As already pointed out their Lordships of the Privy Council have decided that under section 59, which in this respect is couched in similar terms to section 123, attestation, to be valid, must be an attestation of the execution of the document seen by the attestor and not merely an attestation of the executant's acknowledgment or admission of its execution. The attestation in the present case is merely of the executant's admission of its execution and there is 110 evidence on the record that any of the witnesses were present and saw the execution of the document. It is true that no direct issue upon this point was specifically taken in the written statement or framed at the trial and no argument appears from the judgment of the learned Subordinate Judge to have been addressed to him upon this question. It was therefore urged that we should not allow the point to be taken at this late stage or at least that we should remand the case for a finding upon an issue specially framed giving leave to the parties to call evidence as to whether the witnesses were actually present and witnessed the execution. In Shama Patter v. Abdul Kadir already referred to a somewhat similar situation arose. The question for decision there was under section 59 of the Transfer of Property Act. No direct issue upon the point was taken in the pleadings nor was the issue raised at the trial but the trial Judge after the evidence had been token and after the arguments were concluded framed a special issue and decided the case upon it. Their Lordships held that this was permissible under section 149 of the Civil Procedure Code of 1882, corresponding to Order XIV, rule 5 of the present Code and further stated that even had there been no such express provision in the Code every Court trying civil causes has inherent jurisdiction to take cognizance of questions which cut at the root of the subject-matter of controversy between the parties. In Ganga Pershad Singh v. Ishri Pershad Singh again the precise point was not raised in the pleadings nor in the issues framed at the trial but arose incidentally in connection with an issue framed relating to limitation. In both those cases an application to remand the case for further evidence was rejected. In the present case both in the pleadings and in the issues framed before the trial the validity of the document of 1917 was challenged and it was for the respondents, as plaintiffs, to satisfy the Court as to its validity. At an early stage of the trial during the cross-examination of the plaintiffs' father-in-law who was their first witness, questions were asked as to whether the attesting witnesses were present to give evidence. It was admitted that they were not and no attempt was afterwards made to procure their attendance. After the evidence closed it would certainly have been open to the appellants' pleader to have argued that the document was not properly attested and therefore invalid. It is true there was no argument on the question before the trial Court but neither was there in Shama Patter's case and the mere fact that the trial Court did not itself decide this point does not preclude us from doing so. I had some doubt during the argument as to whether we should remand the case to the Court of the Subordinate Judge framing an issue for him to determine upon further evidence. In my opinion it would be useless for us to do so. The attestation of the witnesses purports to be on the admission of the executant and even should one or more of the attesting witnesses be called and depose that the document was executed in their presence such evidence would be open to the gravest suspicion in face of the document itself. The attestation of a witness on the acknowledgment or admission of the executant of the document is permissible in the case of wills and the expression is well understood in this country. It is hardly conceivable that those whose interest it is to get the document attested would take the signatures of witnesses upon the acknowledgment of the executant only if the witnesses had in fact been, present at its execution. The respondents whose attention was called to the absence of the attesting witnesses, had every opportunity of proving, if they could have proved it, that the document which purported to be attested merely on the admission of the executant was in fact signed by the executant in the presence of the witnesses. They have refrained from giving evidence upon this essential point in the case and, in my opinion, should not now be allowed to endeavour to prove a case which is in conflict with the document itself.
A further point was taken on behalf of the appellants which, in view of the findings arrived at, it is not necessary to decide, viz., that the deed of gift of 1908 was not void but voidable only and must be treated as valid until set aside in a suit properly framed for that purpose. If the gift were merely voidable it could only be set aside at the option of Bhagela Kuer and she could not transfer her right to sue for this purpose. The point was argued before us and I may state my opinion upon it shortly. Section 19 of the Contract Act was relied on. That section provides that when consent to an agreement is caused by coercion, fraud or misrepresentation the agreement is a contract voidable at the option of the party whose consent was so caused and by section 126 of the Transfer of Property Act it is provided that a gift may also be revoked in any of the cases “save one of failure of consideration” in which, if it were a contract, it might be rescinded. I agree that if this were a voidable contract and not void ab initio it would have to be set aside before a suit for possession could be maintained and further that Bhagela Kuer could not transfer the mere right to sue but the answer to the appellants' argument appears to me to be that, if the facts alleged by the respondents should be made out, there was never any consent at all to the gift within the meaning of section 19 of the Indian Contract Act and although Bhagela Kuer may have permitted her signature to be written on the document in question she never in fact consented thereto. This I think is the effect of the well-known rule laid down in Foster v. Mackinnon,
Although, in my opinion, this point should be decided against the appellants it follows on the earlier findings arrived at that the appeal should be allowed, the judgment and decree of the officiating Subordinate Judge should be set aside, and the suit dismissed with costs, here and in the Court below.
Mullick, J.:— I agree.
Appeal allowed.