Chamier, C.J:— Maharaja Sir Radha Prasad Singh Bahadur owner of the Dumraon Estate died on May 5th 1894, having by his will, dated 17th December, 1890, devised the estate to his widow Maharani Beni Prasad Koeri for her life and authorised her to adopt a son. The Maharani under pressure from the Bengal Government appointed a Mr. Fox tomanage the estate but for several years resolutely declined to adopt a son. Her only daughter was married to the Maharaja of Rewa and her idea appears to have been to adopt the second son of the daughter, if there should be a second son. She died in December 1907 and it was then alleged that she had adopted a son a few days before her death. The Court of Wards having taken possession on behalf of the alleged adopted son, the present Maharaja, who is defendant 1 to this suit, challenged the adoption and sued for possession of the estate. He obtained a decree in the first Court. The Court of Wards appealed and there was a compromise under which defendant 1 obtained the estate and the allege 1 adopted son received from him, ten lakhs of rupees.
2. Partly on account of her refusal to adopt a son and partly for other reasons, Maharani Beni Prasad Koeri fell out with the Government of Bengal. She also quarrelled with Mr. Fox and desired to dismiss him. Early in 1902 she called to her assistance the plaintiff who had acted as vakil for the Estate since about 1888 and was in 1902 practising in Arrah. Fox was dismissed or resigned and in November 1902 the plaintiff was definitely appointed Manager of the Estate. In June 1906 the Maharani executed in favour of the plaintiff an ikrarnamah in which she recited that the plaintiff had at her request abandoned his practice and had become her Manager, and declared that in order that he might not suffer loss from the abandonment of his practice he was to have a “pension” of Rs. 500 a month from the date of his retirement from the Managership of the Estate. The plaintiff ceased to be Manager in March 1908 and drew the pension till September 1911, when defendant 1 obtained possession of the Estate.
3. In the present suit brought in August 1912 the plaintiff claims the pension from September 1911 to the end of July 1912 and interest on arrears unpaid. He impleaded as defendant 1 the present possessor of the Dumraon Estate, as defendant 2 the person who was put forward as the adopted son of the late Maharani, and as defendant 3 the Maharani of Rewa, the daughter of the late Maharani. His case is that the ikrarnamah was valid, whether the Maharani was in possession as tenant for life, Hindu widow, executrix, trustee, Manager or trespasser, and that it is enforceable both against the Raj and against the savings of the late Maharani and against any personal property left by her. The defence of defendants 2 and 3 need not be noticed. Defendant 1 resisted the suit on every conceivable ground. He pleaded that the suit was bad for misjoinder of parties and causes of action, that the ikraranamah had been obtained by undue influence, that the Maharani had not received independent advice or understood its effect and meaning, that the ikrarnamah was supported by no consideration and was beyond the competence of the Maharani in any view of her position, and that the grant of a pension was a highly improvident act and was not binding upon the Estate or on defendant 1. The Subordinate Judge held: (1) that there was misjoinder of parties and causes of action but that the suit was not liable to be dismissed on that account; (2) that the late Maharani was a cultivated, intelligent, capable, strong-minded and independent woman well able to look after herself and her affairs. That the ikrarnamah was not procured from her by up due influence but she executed it of her own free will and fully understood its nature and contents; (3) that the grant of the pension was not an improvident act but that it was for her own benefit and not for legal necessity or for the benefit of the Raj; (4) that the ikrarnamah was not binding upon the Raj in the hands of defendant 1; (5) that the Maharani had a life estate in the Raj and that many properties acquired by her had been incorporated in the Raj and not treated as her separate property; (6) that the reason for granting the pension was not that stated in the ikrarnamah but was gratitude to the plaintiff for having brought about a reconciliation between the Maharani and the Bengal Government, albeit by means of which both she and the plaintiff were ashamed, and that there was no real consideration for the grant of the pension; (7) that the plaintiff would have been entitled to recover the pension from the stridhan of the Maharani and from properties 1, 2 and 3 in issue 11, if the ikrarnamah had contained a contract by the Maharani to pay the pension out of those properties. The Subordinate Judge construes the ikrarnamah as containing only an undertaking that the pension would be paid out of the Raj. In connexion with this finding the Subordinate Judge observed that defendant 1 had kept back papers required by the plaintiff on “false and frivolous pretexts.” It is difficult to reconcile the seventh finding with the last part of the sixth finding, for it would seem that if there was no consideration for the ikrarnamah the plaintiff cannot enforce it. The case was tried at extraordinary length and a mass of irrelvant matter was introduced. In this Court defendant 1 has printed the whole of the lengthy judgment in the suit brought by defendant 1 though it has no possible bearing on this case. He has also printed the whole in the long deposition of the plaintiff in that suit, although only two passages in it are required. The deposition and judgment cover 63 and 113 printed respectively. They were intended, it seems, to bring into prominence the fact that the plaintiff supported the present defendant 2 in the previous litigation. I propose to deal with the findings of the Subordinate Judge in the order given above. The first finding may be disregarded. The second finding has been challenge a by defendant 1, but it is unquestionably correct. That the Maharani was a cultivated, capable and independent woman well able to look after herself, that she fully understood the ikrarnamah and had no need of independent advice in such a matter is proved by documentary evidence, apart from the oral evidence which is equally convincing. The power-of-attorney given by her to the plaintiff and her written instructions to him show how determined she was to keep all important matters in her own hands, Mr. Hasan Imam contended that the plaintiff had schemed to procure the post of Manager in collusion with his friends and relations in the munshikhana, that while suggesting the appointment of an European official instead of himself he had put forward the names of men who, he knew were certain to refuse the appointment and had thus thrown dust in the eyes of the Maharani, brought about the appointment of himself as manager, and acquired influence over the Maharani which he used in improper ways, e.g, by paying some men over a lac of rupees to bring influence to bear upon the Bengal Government. The learned counsel came very near suggesting that part of the sum just mentioned found its way into the pockets of the plaintiff. He said that in any case it was a disgraceful affair and he pointed out that the expenditure was entered under the head of “pilgrimage.” He contended that the plaintiff had used what was made to appear as the favourable outcome of that affair as a means of bringing pressure to bear on the Maharani and that according to the plaintiff's own admission it was soon after the so-called reconciliation that he asked the Maharani to “remember her promise” to him and that he actually made suggestions regarding the form of the ikrarnamah, if he did not draft it himself.
4. We were also invited to compare the management of the plaintiff with that of Mr. Fox and to hold that the plaintiff's management was inefficient. I can discover do evidence worth the name that the ikrarnamah was procured by undue influence. If any presumption of undue influence arises from the relations between the Maharani and the plaintiff I hold that it has been amply rebutted, and that the Maharani was in no way over-reached or tricked. I entirely agree with the Subordinate Judge that the Maharani executed the document of her own free will and fully understood its meaning and effect. Her own endorsement on the document shows that she fully understood it. It was urged that the lady could not have understood the clause which provides that the plaintiff is to have the pension whether he resigns or is compelled to give up the appointment for any reason good or bad [halat makul ya ghair makul), for he might be turned out for dishonesty and yet claim the pension. Probably no such eventuality was contemplated and I do not think that the document bears the construction put upon it by defendant 1. The evidence regarding the management of the plaintiff has little if any bearing on the case and there appears to me to be no foundation for the suggestion that the plaintiff in connexion with the appointment of a manager put forward the names of Europeans who were certain to refuse the appointment and that he did so in order to bring about the appointment of himself. The finding of the Subordinate Judge on the third and fourth points maybe accepted. There was no necessity to give the plaintiff a pension and the ikrarnamah cannot be held to bind the Raj in the hands of the defendant 1.
5. As regards the first point, it is the case of defendant 1 that the Maharani had an estate for life in the Raj and not the estate of a Hindu widow taking on an intestacy. There is ample evidence, which will be referred to later, that the Maharani acquired several properties cut of the income received by her. Such acquisitions were managed along with the Raj and if she had held the estate of a Hindu widow, there would have been a presumption that she intended the acquisition to accrete to and form part of the Raj. The question whether the same presumption arises in the case of a tenant for life will be considered later. I pass over for the moment the sixth finding of the Subordinate Judge. His finding on the seventh point that the Maharani did not intend to hold herself personally liable for the pension and undertook only that it should be paid out of the Raj cannot be accepted. It rests on an obvious misinterpretation of the document. Mr. Hassan Imam for defendant 1 did not attempt to support the finding. The relevant passage in the document runs as follows:
“The said Munshi shall get Rs. 500 monthly, which amounts to Rs. 6,000 annually as a pension for his life from the date on which he resigns the post of Manager of the Raj Riyasat Dumraon.”
(Bataur pension ke tarikh alahadigi az ohda managiri Raj Riasat Dumraon se mila kare). It is impossible to translate this sentence thus
“shall get……Rs. 6,000 annually as a pension from the Raj Riyasat Dumraon from the date on which he resigns the post of Manager,”
but this is what the Subordinate Judge seems to have done. The preposition az must be read with odha not with alahadigi and the word se must be read with the words tarikh alahadigi not with the words Raj Riyasat Dumraon. The later passage:
“the heirs and representatives of me the executant and the gaddinashin and administrators of the Raj Riyasat Dumraon should fully comply with this deed,”
does not indicate that the executant and her heirs are not to be liable for the pension. I construe the document as including a personal undertaking on the part of the Maharani to pay the pension, and I have no doubt that was her intention. If this view is correct and the ikrarnamah was supported by good and valid consideration the payment of the pension may be enforced against any property of the Maharani that may be available. It has been ruled repeatedly that both under the Hindu law and under the British Indian law any one who intermeddle with the property of a deceased person renders himself liable for the debts of the deceased to the extent of the property taken by him see for example Khitish Chandra Acharjya Chowdhry v. Radhika Mohan Roy(1), Karimuddin v. Gobind Krishna Narain(2), and a suit for general administration is not necessary in such a case, Narayansami Pillai v. Esa Abbayi Sait(3). The general rule as to the burden of proof in such cases is thus stated by Mayne at p. 399, Edn. 8 of his work on the Hindu Law:
“As regards the onus of proof that assets have come to the hands of the heir, it has been ruled by the Madras High Court that the plaintiff must in the first instance, give such evidence as would prima facie afford reasonable grounds for an inference that assets had, or ought to have, come to the hands of the defendant. But when the plaintiff has laid this foundation for his case, it will then lie on the defendant to show that the amount of the assets is not sufficient to satisfy the plaintiff's claim, or that they were of such a nature that the plaintiff was not entitled to be satisfied out of them, or that there never were any assets, or that they have been duly administered and disposed of in satisfaction of other claims.”
6. It is unnecessary to discuss at any length the question whether any assets of the deceased Maharani came into the hands of defendant 1. Mr. Marr's report shews that Rs. 1,21,097 and 6,165 gold coins, worth according to the Bank's account about Rs. 2,00,000, were found in the Maharani's private treasure room. A considerable quantity of jewellery also was found. The Court of Wards was in possession for some years, and it is impossible on the evidence now before us to say that defendant 1 collected any rents due to the Maharani at her death, but the Court of Wards made over the jewellery and part of all events of the proceeds of the sale of the gold coins to defendant 1. The plaintiff in his evidence says that many properties were purchased by the Maharani his time. D.W's 9 and 13 both admit that the Maharani acquired property. Making every allowance for the fact that the Court of Wards held possession for some time I think that it has been shown that defendant 1 came into possession of property both moveable and immovable which the late Maharani might have disposed of if she pleased. Defendant 1 relies upon the rule laid down in Isri Dutt Koer v. Hansbutti Koerain(4), that property bought by a Hindu widow out of the savings from her husband's estate is presumed to belong to that estate but the plaintiff contends that this rule does not apply and never has been applied to savings effected by a tenant for life. Ainslie, J., in the case just mentioned, said in the course of his judgment [see Hunsbutti Kerain v. Ishri Dutt Koer(5)]:
“Whatever the incidents of a Hindu widow's estate may be it is certainly not identical with the interest of a female who takes a life-interest by gift or bequest because at least as to moneys or properties acquired by the female tenant and not specifically disposed of by her in the one case her husband's heirs and in the other her own heirs succeed.”
7. In the case of Bhagbutti Devi v. Bholanath Thakoor(6) an estate had been conferred on a woman for life with power to appropriate the profits and their Lordships of the Privy Council said:
“According to this construction she would have the power of making whatever use she chose of the proceeds of her estate, and if she bought land or personal property…. that land and that property would be hers, and would devolve on the defendant who represents her.”
8. In Veeraraghava Reddi v. Kota Reddi(7) a Hindu female had been entitled to the income of certain property for life as maintenance and had bought other property out of savings from that income. It was held that the purchased property descended to her own heirs. I can discover no case in which the rule in Isri Dutt Koer's case has been applied to the savings of a tenant for life. The will of the late Maharaja does not expressly authorise the Maharani to appropriate the profits of the same to her own use but it must be held that she had the power to do so and, if the rule in Isri Dutt Koer's case regarding savings effected by a Hindu widow does not apply to this case it must be held that the acquisitions of the late Maharani are answerable for her engagements.
9. This brings me to the last and the most difficult point in the case, namely, whether the ikrarnamah is supported by valid consideration. The consideration stated in the document is that at the request of the Maharani the plaintiff gave up a lucrative practice at the Bar and entered the Maharani's service and the object of the execution of the document as stated in it is to secure him against loss in case he vacated the appointment. The Subordinate Judge says that he does not believe that this was the real consideration for the deed. His reasons are that the statement of the plaintiff, that when he entered her service the Maharani assured him that he would not be a loser if he had for any reason to give up the appointment has not been corroborated by any other evidence and no such assurance was referred to in the ikrarnamah. It is true that the plaintiff's statement on this matter has not been assurance is mentioned in the document. I myself am prepared to accept the plaintiff's statement that the Maharani did give him the assurance, but it appears to me that the result will be the same if the Subordinate Judge's view is accepted. It is proved beyond any doubt that at the time when the plaintiff was offered the appointment he had a fair if not a leading practice at the Arrah Bar and that he gave up that practice at the instance of the Maharani. According to Section 2(d) of the Contract Act, the giving up of his practice by the plaintiff at the request of the Maharani is consideration for her subsequent promise to give him a pension: see Sindha Shri Ganpaisinghji v. Abraham(8) and the notes by Messrs. Cunningham and Shepherd to Section 2 of the Act, where they point out the difference between the English and Indian law on the subject. If the action of the plaintiff was voluntary the case might possibly come under Section 25(2) of the Act.
10. If the promise to pay the pension was made in consideration of the plaintiff giving up his practice and accepting the appointment of manager, I hold that there was a valid consideration for the promise. But according to the Subordinate Judge the consideration for the grant of the pension was not as stated in the document but was the service rendered by the plaintiff in bringing about a “reconciliation” between the Maharani and the Bengal Government. The Subordinate Judge says that “in securing the latter the plaintiff-adopted all means fair or foul” that he “secured by illegal gratification the assistance of men who might exert their influence with high officials of the Government and effect a reconciliation with the Government,” that the plaintiff “entered into a combination with these men and nearly 11 lacs of rupees disappeared from the treasury” though “what particular tactics these men adopted and what part was assigned to each man will always remain a mystery” and “as soon as everything was settled to her satisfaction he applied to the Maharani for a reward for his service.” The learned Subordinate Judge says that the plaintiff “did not scruple to resort to most discreditable methods to relieve the Maharani from her anxiety.” In this Court counsel for defendant 1 contended that part at least of the consideration for the grant of the pension was immoral or contrary to public policy and, therefore, the contract is void. The Subordinate Judge does not hold this in so many words but the language used by him is consistent with such a view of the case. Let us see exactly what evidence there is on this matter. The Maharani was in trouble with the Government, the Lieutenant-Governor had refused to give the plaintiff an interview and matters were at a deadlock. Plaintiff asked Mr. Lyon (the Commissioner) and others to speak to the Lieutenant-Governor on behalf of the Maharani. No objection is taken to this. But it appears that Rs. 1,08,000 were paid to certain people in connexion with the Maharani's difficulties. The plaintiff's account is as follows:
“Gold mohurs of the value of one lakh ware taken from the private treasury of the Maharani in my time: (the Maharani) gave to certain persons in remuneration fee and as reward for certain services done to her. The matter of the services was to secure the succession of the second son of the Maharaja of Rewa, if born, with the permission of the Government and to have the annuity in favour of the Maharani of Rewa doubled. It was not the object to enable the Maharani not to exercise the power of adoption given to her by the will. The note (Ex. E) bears the signature of the Maharani, my signature and the signature of Luchmi Prasad. The money was taken out from the treasury before 10th March, 1906, about a month before that. The objects were all gained and the men were paid. The Maharani paid the money to Juggernath Mahta and he reported that he paid it to those men. He gave me the names.”
11. The plaintiff also admitted the payment of a further sum of Rs. 8,000. After the death of the Maharani the plaintiff was required by Messrs Morgan and Co. to pay more, but he took no notice of the demand. Nothing more is known of the affair except that under the orders of the Maharani countersigned by the plaintiff, the payment of the sum of one lakh was shown in the accounts as having been paid on account of a “pilgrimage.” On the evidence it appears to me impossible to hold it proved that any illegal gratification was paid to any one. The Maharani was a masterful person. She chose to pay a large sum of money to certain persons to secure their good offices. One of them presented a petition to the Government. What the others did we do not know. There is nothing to shew that the plaintiff touched a single rupee of the money or that any part of the money was paid or was even intended to be paid to any Government official. The persona named as the recipients of the one lac of rupees do not appear to have had anything to do with the Government. If the Maharani who knew quite well what she was doing chose to pay a large sum of money to various people in order to induce them to use their influence with the Government in connection with private or quasi political concerns of the Maharani, it is difficult to see how the transaction can be regarded as immoral or contrary to public policy. It does not appear that those people were expected to intercede or use their influence in an underhand or improper manner. Further it is difficult to see why the plaintiff should be held responsible. One has only to read the power of attorney given to the plaintiff by the Maharani and the orders issued by her to see that the plaintiff was not by any means all-powerful. Indeed his powers were very carefully circumscribed. My conclusion is that the Maharani herself must be regarded as responsible for the payment of the money to the persons named by the plaintiff. On the evidence I am not prepared to hold that the payment was immoral or contrary to public policy. Nor can I hold that the plaintiff was responsible for the payment in any way. Large sums are paid to barristers, vakils and others in this country for their services in administrative and even quasi political cases. It has never been suggested that this is immoral or contrary to public policy. Whatever is done is done openly, not in the dark. The circumstance that the nature of the payment was concealed in the accounts does not show with any certainty that the transaction was immoral or improper. There may have been many reasons why the Maharani should not wish her servants to know about the payment. Much stress was laid upon a passage in the plaintiff's deposition where he said:
“the Government resolution pleased the Maharani much. The passing of one of the Government resolutions was one of the several reasons why the Maharani executed the ikrarnamah. (Then says) it was not a reason for executing the ikrarnamah.”
12. According to the plaintiff it was soon after the so-called reconciliation with the Government that the plaintiff reminded the Maharani of her promise and it may well be that but for the passing of the resolutions the Maharani would not have been, in a mood to execute the ikrarnamah. She was satisfied and pleased with the result of the efforts that had, been made and was no doubt in a mood to treat her Manager generously. In this sense the passing of the Government resolution may be regarded as one of the reasons why the ikrarnmah was granted. Even if the passing of the resolution was part of the consideration for the ikrari namah, I would not hold that the ikrarnamah is on that account invalid. In my opinion it has not been shown that the consideration for the ikrarnamah was either wholly or in part immoral or contrary to public policy. I believe that the true consideration is that stated in the document. There is nothing surprising or improper in the grant of a pension. The evidence shews that other Managers'secured much more generous treatment. The grant of pensions or leases of land on favourable terms in lieu of pensions is a common feature in the management of large estates in this country. But for the plaintiff's action in supporting the alleged adopted son I doubt whether the plaintiff's claim would have been resisted.
13. I would dismiss the appeal with costs against defendant 2. The plaintiff had no excuse for impleading him. I would dismiss the appeal without costs as against defendant 3, who has not appeared.
14. I would allow the appeal as against defendant 1 and pass against him a decree for the principal sums claimed with interest at 6 per cent, per annum from the end of each month till realisation the decree to be executed only against the property of the Maharani in his hands which has not been duly administered by him. Defendant 1 must pay the plaintiff's costs in both Courts. I would in any event have disallowed the cost of printing defendant 1's portion of the paper-book.
15. Sharfuddin, J.:— I agree.
V.S/R.K
16. Appeal partly accepted.