The Judgment of the Court was as follows:—
The subject-matter of the litigation which has culminated in this appeal is the estate left by one Haridas Mookerjee who died on the 31st August 1901. The relationship of the members of the family to which he belonged may be gathered from the following pedigree:—
Kedar Nath Mookerjee, the founder of the family, left two sons by two wives, namely, Santosh Lal Mookerjee and Haridas Mookerjee. Santosh Lal Mookerjee left two sons, Nibaran Chandra Mookerjee and Dhruba Pada Mookerjee, who are the Defendants in this suit. Haridas Mookerjee left a widow Nirupama who is the Plaintiff in this litigation, and two daughters Sarajini and Nabanalini by a predeceased wife, a cousin of Nirupama. At the time of the death of Haridas Mookerjee his second wife Nirupama had not yet attained majority. On the 5th May 1905, Tripura Charan Chatterji, her father, made an application to the District Judge under the Guardians and Wards Act, 1890, to have himself appointed as guardian of the person and properties of the minor. The order was made in due course on the 26th May 1905. The correspondence, which took place at that time between Tripura Charan Chatterjee and Santosh Lal Mookerjee and has been produced in this case, leaves no room for doubt that the application was encouraged by the brother-in-law of the lady who “was also the immediate reversionary heir to the estate of her husband. The reason why he keenly interested himself in the matter of the guardianship application becomes manifest when we examine the events subsequent. On the 21st September 1905, the guardian applied to the District Judge for permission to lease out the property of his ward to the reversioner Santosh Lal Mookerjee. The District Judge asked for specific information as to the terms, the period of the proposed lease and the annual rent reserved thereunder. The information was not supplied and the petition was dismissed on the 7th November 1905. On the 15th November 1905, the District Judge recorded an order that as no property was to be leased out for more than five years, his sanction was not necessary, and the guardian was at liberty to make such arrangements for the maintenance of the minor and the management of her property as might be deemed to be for the benefit of the minor and her estate. Thereafter, an application appears to have been made to the District Judge for permission ??? make a settlement of the estate of the minor for her life; this was refused by the District Judge on the 8th February 1906. On the 1st May 1906, a document was executed by Tripura Charan Chatterjee in favour of Santosh Lal Mookerjee which has been described in these proceedings as a deed of settlement for a term of five years. The effect of this deed was to place the properties of the minor inherited by her from her husband in charge of the reversioner, who undertook to pay her a fixed allowance and to bear the expenses of the marriage of her second step-daughter. The deed was to continue in operation from 17th November 1905 to fie 16th November 1910. On the expiry of the term of this deed, the parties apparently reverted to the previous state of things which continued for more than two years. On the 22nd June 1913, Niruptma, who had meanwhile attained her majority, executed a deed in favour of Nibaran Chandra Mookerjee and Dhrubapada Mookerjee who had succeeded to the interest of their late father Santosh Lal Mookerjee in the family estate. This deed, which is described as a deed of settlement, was closely modelled on the deed of the 1st May 1916 with two fundamental differences, namely, first, that the settlement was not for a term of five years but for the life of the lady and, secondly, there was no provision for the marriage expenses of the step-daughter whose marriage had already taken place in the interval. On the 20th June 1918, Nirupama instituted the present suit for partition of the joint family properties, for accounts, and for incidental reliefs, on declaration that the deed of the 22nd June 1913 was void and inoperative in law and had in no way affected her interest in the family estate as heir-at-law to her husband. The Defendants repudiated the claim substantially on the ground that the Plaintiff was bound by her deed and could not claim joint possession or partition of what had in essence ceased to be joint family estate. On these pleadings twelve issues were raised by the trial Court; of these, reference need be made only to four:—
(1) Is the suit barred by limitation?
(2) Are the properties in suits the joint family properties of the parties or are any of these the self-acquired properties of the Defendants and their father?
(3) Is the settlement deed of the 22nd June 1913 tainted with fraud and undue influence?
(4) Are the Defendants liable to render accounts to the Plaintiff? If so, for what; and up to what period?
The Subordinate Judge has held on the evidence that the deed was obtained from the Plaintiff under circumstances which did not make it binding upon her, a purdanashin lady, and that in fact she was not aware of the contents of the document which she believed was a deed for five years, similar to the deed which had been previously executed by her father. The Subordinate Judge has also found that the properties in suit were joint properties of the two sons of Kedar Nath Mookerjee or were accretions thereto made by the use of the joint family funds. The Subordinate Judge has further held that the Defendants were bound to render accounts of the cloth and grocery shops which belonged to the family, such accounts to be rendered from the date of death of their father till the dates when the shops were closed. In this view, the Subordinate Judge has decreed the suit and directed the appointment of a Commissioner to make the partition and to take the accounts. On the present appeal, this decree has been assailed by the Defendants on the grounds, that the deed was fairly taken from the Plaintiff and was binding upon her, that the deed could not be set aside after the lapse of the period of limitation prescribed for the institution of a suit for that purpose, that the effect of the deeds of the 1st May 1906 and 22nd June 1913, was to cause a disruption of the joint family, so that the properties acquired after the date of the first deed could not be deemed to possess the character of joint family properties, and, finally, that the Defendants were not liable to render accounts.
The substantial point in controversy is, whether the deed of the 22nd June 1913 is a fair transaction which binds the Plaintiff as a purdanashin lady. Before we investigate the attendant circumstances, we may conveniently recall the cardinal tests which must be applied to determine the operative character of deeds taken from purdanashin ladies who are unable to protect themselves. It is well settled that the Court, when called upon to deal with a deed executed by purdanashin lady, must satisfy itself upon the evidence, first, that the deed was actually executed by her or by some person duly authorised by her, with a full understanding of what she was about to do; secondly, that she had full knowledge of the nature and effect of the transaction into which she is said to have entered; and thirdly, that she had independent and disinterested advice in the matter. The leading judicial decisions which recognise these principles are collected in the judgments of this Court in Mariam Bibi v. Ibrahim (1), Krishna Kishore De v. Nagendra Bala Chaudhurani (2) and Satish Chandra Ghose v. Kalidasi Dasi (3). On examination, these decisions will be found to fall broadly into two groups, namely, first, cases where the person who seeks to hold the lady to the terms of her deed is one who stood towards her in a fiduciary character or in some relation of personal confidence; and, secondly, cases where the person who seeks to enforce the deed was an absolute stranger and dealt with her at arm's length. In the former class of cases, the Court will act with great caution and will presume confidence put and influence exerted; in the latter class of cases, the Court will require the confidence and influence to be proved intrinsically. This is a fundamental distinction which does not appear to have been always kept in view, with the result that observations made in the one class of cases have been applied without scrutiny to the other class of cases. Illustrations of the confusion, which has resulted from this failure to discriminate between the two classes of cases, are furnished by the decisions in Rani Usmat Koowar v. Tayler (4), Soondur Kumari v. Kishori Lal (5), Ram Prosad v. Ranee Phulpatee (6), Kanai Lal v. Kamini (7), Monohar v. Bhagabati (8), Asmatunnessa v. Alla Hafiz (9), Rup Narain v. Gangadhar (10), Pannalal v. Bama Sundari (11), Dooleechand v. Oomda Khanun (12) Bibi Rukhun v. Sheikh Ahmed (13), Khas Mehal v. Administrator-General (14), Nistarini v. Nandalal (15), Keshub Lall v. Radha Raman (16), Kamini v. Krishna Chandra (17), Eadiatannessa v. Ambika Charan (18), Bhuban Mohini v. Gajalakshmi (19), Behari Lal v. Habiba Bibi (20), Achhan Kuar v. Thakurdas (21), Hakim Md. Ikramuddin v. Najiban (22), Shamsuddin v. Abdul (23), Tamarasheri v. Maranat (24), Mahadevi v. Neelamani (25), ??? Umma v. Lewcock (26), Chillummul v. Garrow (27) and Narsammal v. Lutchmana (28). Reference may also be made in this connection to the two decisions of the Judicial Committee in Bazlur Rahim v. Shamsunnessa (29) and Grish v. Bhuggobutty (30). In the former case, where the transaction was between a husband and a wife, their Lordships observed that the burden of proving the reality and bond fide a of the purchases pleaded by her husband was properly thrown on him. In the latter case, which was one of a deathbed gift in favour of the donor's brothers in their wives' names to the exclusion of her husband's adopted son, their Lordships pointed out that the Judicial Committee and the Courts in India had always been careful to see that deeds taken from purda women had been fairly taken and that the party executing them had been a free agent and duly informed of what she was about. The substance of the matter then is that the fairness of the bargain is the crucial test. This principle runs through the later decisions of the Judicial Committee, though the rule is more specially enforced in cases where a fiduciary relation involving trust and confidence is shown to exist. Fazzul Hossein v. Amjud Ali (31), Ashgar v. Delroos (32), Azezunnessa v. Baur Khan (33), Taccordin v. Syed Ali (34), Sudhistlal v. Sheobarai (35), Mahomed Buksh Khan v. Hosseini Bibi (36), Lala Amarnath v. Achan Kuar (37), Deo Kuar v. Man Kuar (38), Hakim Md. Ikramuddin v. Najiban (39), Annoda v. Bhuban (40), Shambati v. Jago (41), Ismail v. Hafiz (42), Kishori Lal v. Chuni Lal (43), Muhammud Kamil v. Imtaiz Fatima (44), Sajjad Husan v. Wazir Ali (45), Kali Baksh v. Ramgopal (46), Mahabir Prasad v. Taj Begum (47), Azima Bibi v. Shamalanand (48), Mahommed Ali v. Ramzan Ali (49), Sunitibala v. Dhara Sundari (50) and Matilal Das v. Eastern Mortgage & Agency Co. (51). The essence of the matter was tersely put by Lord Buckmaster in Sunitibala v. Dhara Sundari , when he stated that the circumstances under which a purdanashin woman agrees to transfer property in which she is interested, must be carefully examined, in order to ascertain that she had independent advice and that the lady had sufficient intelligence to understand the relevant and important matters, that she did understand them as they were explained to her, that nothing was concealed and that there was no undue influence or misrepresentation. The principle thus enunciated was adopted as the basis of the judgment pronounced by Sir John Edge in Matilal Das v. Eastern mortgage and Agency Co. . It will be observed that the Court must thus have regard to the intellectual attainments of the lady concerned and will naturally be disinclined to set aside the deed where she is proved to have been of business habits, to have been literate and to have possessed a capacity to judge for herself. Sunitibala v. Dhara Sundari , Matilal Das v. Eastern Mortgage and Agency Co. , Mahommed Ali v. Ramzan Ali , Kali Baksh v. Ramgopal , Sajjad Husan v. Wazir Ali , Mahomed Buksh v. Hosseini Bibi , Mahabir Prasad v. Taj Begum , Azima Bibi v. Shamalanand , Ismail v. Hafiz , Hodges v. Delhi and London Bank (52), Bindubashini v. Giridhari (53), Alikjan v. liambaran (54) and Bhuban Mohini v. Gajalakshmi . These, however, are only general principles, and it cannot be too strongly emphasised that there is a grave risk of failure of justice, if they are moulded into inelastic formulas or crystallised into inflexible rules and treated as of universal application, regardless of the special facts and surrounding circumstances of the concrete case which requires adjudication.
The case before us belongs to the first class mentioned above, where the persons who seek to hold the lady to the terms of her deed stand towards her in a relation of personal confidence. Santosh Lal Mookerjee, who had taken the first deed from her father, was the elder brother of her husband and the head of the joint family at the time. Nibaran Chandra. Mookerjee and Dhrubapada Mookerjee, who took the second deed from her. Here the sons of the step-brother of her husband, and the management of the family estate would devolve on them after the death of her brother-in-law. She was on that best of terms with them, and would, according to the normal structure of a joint. Hindu family, look upon them as her natural protectors in whom she might repose confidence properly to safeguard her rights. In such circumstances, the elementary principle formulated in sec. 111 of the Indian Evidence Act would become applicable, namely, that where the is a question as to the good faith of a transaction between parties one of whom stands to the Other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. Whenever a person derives a benefit under a deed, if any confidential or fiduciary relation subsists between the parties, the Courts so far presume against the validity of the instrument as to require some proof, varying in amount according circumstances, of the absence of filing approaching to imposition, overreach in, undue influence, or unconscionable advantages. In the case before up, there is the significant fact that the executant of the deed was a lady of weak intellect, the daughter of an insane mother, and at the time of the transaction was an illiterate girl-widow who had just come of age. In such circumstances, it would be the imperative duty of those who took the deed from her to keep her at arm's length and to take every possible precaution to make sure that she received independent advice, understood the relevant and important matters, and appreciated the true effect of the deed on her rights, and further that nothing was concealed from her, nothing was misrepresented to her, no undue influence was exerted on her. The Defendants asserted that these conditions were substantially fulfilled, because the lady herself offered to execute a deed of settlement for life, and acted under the advice and guidance of her father. The lady, on the other hand, maintained that she understood that the deed was to be operative for five years only, like the deed previously executed by her father. The Subordinate Judge has accepted her version, and we see no reason to differ from his view on this point. The testimony of Jatindranath Banerjee, Nirmal Chandra Banerjee and Nibaran Chandra Mookerjee makes it abundantly clear that Tripura Charan Chatterjee, the father of the lady, obtained the signature of her daughter to the deed, but the document was not explained to her nor was she advised as to the effect of the disposition on her interest. The father was plainly not in a position to give independent advice to his daughter. He held an appointment at Krishnagar; his widowed daughter resided in the interior of the District of Hugli; thus his own vocations made it impossible for him to look after the estate of his daughter. He had, besides, through the good offices of Santosh Lal Mookerjee, acquired some properties at Howrah, the ancestral place of residence of the family of his deceased son-in-law. For the management of these properties, he had to rely in a large measure upon Santosh Lal Mookerjee and his sons, the present Defendants. He was thus under considerable obligation to them and could not afford, in his own interest, to lose their co-operation, much less to incur their displeasure. That he was in a situation of embarrassment is plainly indicated by the correspondence which passed between himself and the Defendants, who were by no means punctual in the discharge of their pecuniary obligations and preferred to retain in their hands, as long as they could, notwithstanding the insistent demands of Tripura Charan Chatterjee, money payable to him or to his daughter. We are of opinion that the surrounding circumstances unmistakably point to the conclusion that Tripura Charan Chatterjee was by no means free to act solely in the interest of his daughter, and the fact cannot be ignored that even after disputes had arisen and this litigation had commenced, he and his son have been on friendly terms with the Defendants. We cannot further overlook that, shortly after the death of his son-in-law, he had applied to be appointed guardian of the person and property of his daughter, not so much for her benefit as for the advantage of Santosh Lal Mookerjee who was anxious to have control over the share of his step-brother in the family estate. There is no room for doubt that the proceedings in Court on that occasion were engineered by Santosh Lal Mookerjee. If then we consider the conduct of Tripura Charan Chatterjee in connection with the guardianship proceedings, and the execution of the two deeds of settlement, there can be little doubt that his acts have not been guided solely by an anxious desire to protect the interest of his widowed daughter. In our opinion, the Subordinate Judge has correctly held that the lady had not independent advice, as the interest of her father was bound up with that of the Defendants.
There is no room for controversy that this absence of independent advice has been detrimental to the interests of the Plaintiff. When the second deed of settlement was executed, its provisions and their true effect were not explained to her. What is of equal importance is that she was not apprised of the extent, value, and income of all the joint properties.
Neither the deed of the 1st May 1906 nor the deed of the 22nd June 1913 correctly enumerated and valued all the joint properties, moveable and immoveable. This, indeed, is not a matter for surprise, because the Defendants have strenuously maintained that, if not all the properties acquired after the death of their uncle, at least those acquired after the execution of the first deed, did not form part of the joint estate. We hold accordingly that the disputed deed of settlement was understood by the lady to be a deed for five years whereas in reality it was a deed operative for her life, that she had no independent advice, that the extent, income and value of all the joint properties, moveable and immoveable, were not disclosed to her, and that the effect of the deed on her rights was never brought home to her. It is consequently impossible to say that she had independent and competent advice, which, as observed by Fletcher Moulton, L.J, in In re Coomber (55) no doubt does not mean independent and competent approval, but signifies, at any rate, advice removed entirely from the suspected atmosphere and conveyed in the clear language of an independent mind, free from taint of interests, to the party acting, regarding the precise nature and consequence of the transaction. In cases of this class, there need not necessarily be misrepresentation by one party to the other to invalidate the deed; if there is any concealment of material fact, any failure to disclose material information or any just suspicion of artifice, the Court will interpose and pronounce the transaction void, and will, as far as possible, restore the parties to their original rights, because equity demands in such circumstances the most abundant good faith in the transaction between the parties. We affirm without hesitation the conclusion of the Subordinate Judge that the disputed deed of settlement does not bind the Plaintiff. Clearly no question of estoppel, acquiescence and waiver arises. The Plaintiff no doubt received from time to time maintenance allowance from the Defendants. Such allowance, however, would be payable whether the deed was for live years as the Plaintiff supposed it to be, or for life as in fact it was. There is no indication that the Plaintiff ever accepted these sums with knowledge that the terms of the deed were in reality different from what she understood them to be.
We have next to consider whether all the properties in suit are joint properties. The Subordinate Judge has answered this question in favour of the Plaintiff. The properties which were inherited by Santosh Lal Mookerjee and Haridas Mookerjee, the two sons of Kedarnath Mookerjee, were indisputably joint. There is also no doubt that the two brothers lived as members of a joint Hindu family; the elder was manager of the zemindars at Bhastara and Naib of the Srimanis at Mandalgliat: the younger lived at home, worked as gomasta in a neighbouring village and looked after the joint family business in grocery, cloth, iron, ploughs, spades, oilcake, money-lending and sale of stamps. The properties acquired during this time were prime facie joint properties of the two brothers. The burden in such circumstances lies on the party setting up a case of separate estate to establish his allegation, as the family was joint and there was a nucleus of joint property. See the judgment of Lord Robertson in Anand Rao v. Vasant Rao (56), affirming the decision of Jenkins, C.J, in Wasant Rao v. Anand Rao (57). This also accords with the view indicated by Couch, C.J, in Taruk Chandra v. Jogeshwar Chandra (58) which was followed in Gobind Chunder v. Doorgaprosad (59) and Sasimohan v. Akhil (60), although the contrary opinion had been expressed in Bholanath v. Ajodhya Persad (61) and Dinanath v. Hari Narayan (62); see also Bodh Singh v. Ganesh Chandra (63), Atar Singh v. Thakur Singh (64) and Ramanath v. Kusum Kamini (65). The Defendants endeavoured to rebut this presumption by proof that some of the properties were acquired by Santosh, and others by Nibaran and Dhruba from their separate funds. Evidence was led by the Defendants to show that they and their father had separate debtors and that the properties were purchased in satisfaction of the debts due from such debtors as also from the sale proceeds of the paddy realised from them. This theory of separate debtors and separate accounts, however, completely broke down, when it transpired that the accounts of the money-lending business were mixed up with the accounts of the undoubtedly joint cloth and grocery shops. The Subordinate Judge has carefully scrutinised the account books, and has correctly summed up his conclusion in the finding that the story of separate money-lending business is a myth. It is, we think, fairly clear from the evidence that Santosh and Haridas had a joint money-lending business, though some of the transactions stood in the name of the former and others were in the name of the latter. After the death of Haridas the business was managed by Santosh and the present Defendants. The acquisitions made from this source were obviously impressed with the character of joint family properties. It was ingeniously argued, however, by Dr. Dwarka Nath Mitter that the first deed of settlement effected a disruption of the joint family and that whatever properties were acquired thereafter belonged to the elder branch of the family represented by Santosh Lal Mookerjee. This contention is fallacious; for the deed of settlement was in essence a deed of management and did not cause a severance of the family; the title to the half share inherited by the Plaintiff from her husband never vested in her brother-in-law. He became entitled only to hold possession for a term of five years and to apply the income in the prescribed manner. In such circumstances, the principle deducible from the decisions of the Judicial Committee in Surajnarain v. Iqbul (66), Girija Bat v. Sadashiv Dhundiraj (67) and Kawal Nain v. Budh Singh (68) can be of no assistance to the Defendants. We need not now examine whether the act of the guardian was really beneficial to his ward or whether it was so detrimental to her interests as to amount to a fraud on her; Hunooman Persaud v. Babooi Moonraj (69) and Lala Bunseedhar v. Bindesree (70). This much is incontestable that what the grantee undertook to carry out in terms of the deed was the minimum he was under an obligation to perform as the head of the joint family, namely, to maintain the widow and to give in marriage the daughter of his deceased step-brother. The result of the transaction was to enable him to appropriate a considerable portion of the income of the joint family properties, much in excess of what would be his legitimate share on partition. It would be contrary to elementary notions of justice, equity and good conscience to hold that by an appeal to any supposed principles of Hindu jurisprudence the head of the family could, in such an event, treat the joint family as dissolved and the profits in his hands made available for his personal benefit, to be transferred “self-acquisitions.” We hold accordingly that the Subordinate Judge has correctly held that all the properties in suit, whether acquired during the lifetime of the two sons of the founder or of the Defendants, are joint family properties and are liable to be partitioned as such.
On the facts found, no question of limitation obviously arises. If we adopt the view that the deed actually executed by the lady was so fundamentally different from the deed she intended to execute and thought she executed, it is void and inoperative. Art. 91 of the Schedule to the Indian Limitation Act has no application to a case of this description, where a suit is brought for possession and partition upon declaration that an instrument under which the Defendant claims is void; Banku Behari v. Krishna Gobinda (71), Sanni Bibi v. Siddik Husain (72), Oriental Bank Corporation v. Fleming (73) and Dagdu v. Bhana (74). On the other hind, if we adopt the theory that the deed must be cancelled in a suit instituted within three years from the date when the facts entitling the Plaintiff to have the instrument cancelled became known to her, the burden lies heavily upon the Defendants, who obtained the deed by mistrepresentation, to prove that the Plaintiff, acquired full information of the true state of facts at a time too remote to ??? to maintain the suit; Rahimbhoy v. Turner (75). This they have failed 14 establish, and the allegation of the Plaintiff as to the date when she discovered the fraud committed upon her stands unrebutted.
Finally, objection has been taken to the direction given by the Subordinate Judge which calls upon the Defendants to render accounts of the cloth and grocer shops from the death of their father till the shops were closed in 1912 and 1913 respectively. Reliance has been placed upon the decision of the Judicial Committee in Sookhomoy v. Monohurri (76), where Sir Richard Couch referred to the earlier decision of the Judicial Committee in Soorjebnoney v. Dinobundhoo (77) and observed as follows with reference to an order for adjustment of accounts made by the Court is in India: “It is not intended that the Afferent payments, by the manager, of moneys taken out by the members of the family, should be enquired into, but it is to ascertain what portion of the savings of the family or the accumulations which have been made, the Plaintiff would be entitled to.” This is settled law, as is clear from the decisions in Parmeshwar v. Gobind (78), Bhawani Proshad v. Juggernath Shaha (79), Haridas v. Narottam (80) and Balkrishna v. Muthusamii (81) and as we read the judgment of the Subordinate Judge, he did not intend to depart from such a well-recognised principle. In an ordinary suit for partition, in the absence of fraud or other improper conduct, the only account the karta is liable for is as to the existing state of the property divisible; the parties have no right to look back and claim relief against past inequality of enjoyment of the members or other matters. But the karta is the accountable party, and the enquiry directed by the Court must be conducted in;he manner usually adopted to discover what in fact the property now consists of, not what the karta says it is.
The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs and hearing fee Rs. 300.
S.C.M