Straight, J.:— This first appeal relates to a suit instituted on the 23rd August, 1888, in the Court of the Subordinate Judge of Azamgarh by the plaintiff, who is the appellant before us, against the defendants, five in number, the principal of whom is one Umadat Pande, a Brahman, the donee under an alleged deed of gift of 26th April, 1888. The suit is not an ejectment suit, but is one to obtain the specific form of relief contemplated by s. 39 of the Specific Relief Act, and what the plaintiff asked was that an alleged deed of gift of 26th April, 1888, should be set side; in other words, that the Court should order the document to be delivered up and cancelled in the way contemplated by the section of the Act to which I have referred. The grounds upon which the plaintiff asked this relief I need not more particularly mention except to say that at the outset he questioned whether he had ever executed the alleged deed of gift at all, and next he went on to say that if he had, the document was “spurious and fictitious and it was not executed by him willingly and voluntarily.” Now I am not dealing with the plaint as a Court of first instance, or possibly I might, if it had been first presented to me at the outset of the suit, have had something to say as to the form in which it was drawn up, and I might have thought greater particularity in the allegations of fraud necessary, but no objection was taken by the defendants to the form of the plaint, and the suit proceeded to trial upon as it stood. Both the parties have given evidence in the cause, and upon that evidence the decision of the learned Subordinate Judge has been passed in favour of the defendants and against the plaintiff, which decision is the subject matter of the appeal. The only plea that I think it necessary to consider for the purpose of deciding this case is the second plea, which is in the following terms: the decision is bad upon the ground that “the transaction set up by the respondent cannot be enforced and recognized by a Court.”
Now what is the case, taking the facts as put forward on the part of the plaintiff on the one side and the defendants on the other? The plaintiff is a Chatri by caste. He is a man well advanced [525] in years; one who not unnaturally would be contemplating that deatb could not be very far distant. As with most Hindus, he necessarily attached great importance to and held in high reverence the ministrations of Brahmans, to which caste the principal defendant Umadat belongs. Umadat is a man of some 43 years of age, and it is obvious from the remarks of the learned Subordinate Judge that he is a person held in high consideration amongst the people of the locality in which he resides. Now the sole property of which the plaintiff was possessed in the month of April 1888, whether in the shape of unencumbered proprietorship or in the shape of an equity of redemption, was a two-annas-eight pies share in mauza Sidhanna Ragboram, pargana Deogaon, valued, according to the plaintiff, at Rs. 6,000 or, according to the defendant, Rs. 2,999, but subject to certain mortgage 1 charges the precise amount of which is not clear. The document, cancelment of which is sought by the plaintiff, purports to have been executed by him upon the 26th April, 1888, and having had an opportunity of examining the terms of the instrument, I do not think I can do better than to state them as they have been translated to us by the Reader of the Court.
“I, Mannu Singh, son of Sheozor Singh, deceased, caste Chatri, by occupation zemindar, and being resident and zemindar of mauza Sidhanna Raghoram, do hereby declare that, as I have become old and have no issue, nor is there any hope that I shall, therefore, with a view of securing benefit to my soul in the next world, having a month ago heard the recital from Sri Bhagwat by Umadat Pandit, caste Brahman, who is my guru or spiritual guide, I have given a two annas share and out of two annas gultansi right of Saran Singh, an eight pies share, in all, two annas eight pies share in mauza Sidanna Raghoram of which I, declarant, am in possession, and have made a present and a gift by danpattr to the aforesaid guru of the share aforesaid, and he will remain in possession and pay Government revenue, and defraying all usual expenses, derive benefit there from generation after generation. Now I have no kind of concern, and I will cause mutation of names and will bring forward no excuse. If on behalf of me there is any evasion, then [526] the guru may himself by application make mutation of names on the document.”
Now in this document, which has been found by the learned Subordinate Judge to have been in fact executed by the plaintiff, he states that the defendant is his spiritual guide or guru, and in the defendant's own statement of defence in the suit, he also has declared that he was the plaintiff's spiritual guide or guru, and according to the fourth paragraph of the statement of defence, the circumstances under which the deed of gift was made were as follows:—
“The plaintiff has heard him reciting the holy book called Bhagwat, and with the view of deriving benefit in the next world, the plaintiff having made eleemosynary gift (shankalp) of the property, willingly and voluntarily executed a deed of gift (danpattr), and had it registered, and since the time of the execution of the deed of gift, the defendant holds possession of the property by payment of the Government revenue.”
So that taking the deed of gift itself and the terms used in it in conjunction with the statements made by the defendant himself, I have no doubt that the defendant was the guru or spiritual guide of the plaintiff, and that such was the relation held by him in regard to the plaintiff; moreover, I take the defendant's own statements as showing what were the circumstances under which the document was executed by the plaintiff in favour of defendant. Now it is upon these materials that in my opinion the appeal ought to be decided, and I do not think it is necessary to diverge into other matters which are mentioned in the decision of the learned Subordinate Judge, though I have to make a few remarks as to the contention which has been raised before us to-day in regard to what appears in the learned Subordinate Judge's judgment upon the point as to how far possession is necessary to constitute a valid and binding gift under the Hindu law and how far, if it is, the principle or the rule of Hindu law has been abrogated by s. 123 of the Transfer of Property Act, or in other words, whether assuming in this case that there has been, as found by the learned Subordinate [527] Judge, no possession on the part of the defendant of the property the subject of gift, the defect would be cured by the provisions of s. 123 of the Transfer of Property Act. Our attention was called to the ruling of the Calcutta Court in Dharmodas Das v. Nistanni Dasi also to Harjivan Anandaram v. Naran Haribhai(2), Vasudev Bhat v. Narayan Daji Damle(3) Dagai Dabee v. Mathura Nath Chattopadhya(4), and last but not the least, to the dicision of their Lordships of the Privy Council in Kali Das Mullick v. Kanhya Lal Pandit(5). Now from the view in which I am disposed to deal with the case I do not consider it necessary to enter into what is a complicated and difficult question, and upon which at this moment I am not altogether satisfied as to what is the correct view, whether for the purpose of making a good title in the donee under the torms of a gift, actual possession must be given to the donee in order to satisfy the requirements of the Hindu law. There is of course direct authority in the ruling in Dharmodas Das v. Nistarini Dasi for the view that s. 123 of the Transfer of Property Act has so far overridden the Hindu law, and there are also expressions of opinion of their Lordships of the Privy Council in Kali Das Mullick v. Kanhya Lal Pandit at page 232 which raise considerable doubt and difficulty as to the soundness of the principle that possession is absolutely necessary, but the exigencies of the case do not require that I should determine the question. It must therefore be understood that any conclusion at which I arrive in this case is not based on any determination of that question.
Reverting to the position occupied towards one another by the plaintiff and the defendant as they appear upon the materials before me, I have to say that I in no way depart from the principles that I very fully discussed, considered and adopted in Sital Prasad v. Parbhu Lal(6). My judgment in that case was one I took some pains to consider, and I endeavoured therein to state in as explicit language as I could what I believe to be the true rule that should [528] govern cases of this description. At page 545 of the report I said:—“But what the Courts in this country will do, is to see that, where one person is so situated as to be under the control and influence of another, such other does not unduly or unfairly exercise that influence and control over such person for his own advantage or benefit, or for the advantage or benefit of some religious object in which he is interested, and will call upon him to give clear and cogent proof that the transaction complained of was such a one as the law would support and recognise.”
Then at a later stage I say:—
“Where a fiduciary or quasi fiduciary relation had existed, Courts of equity have always placed the burden of sustaining the transaction upon the party benefited by it, requiring him to show that it was of an unobjectionable character and one which it ought not to disturb.”
Now this principle is recognized in the law of evidence in this country which declares that “where there 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.” [S. 111, Evidence Act, I of 1872]. Now applying this rule to the present case, what is the reasonable inference? The defendant was, as I have found him to be, upon the statement of the plaintiff himself in his deed of gift, and upon the defendant's statement, the guru or spiritual guide of the plaintiff, and without any other than the absurd reason given by the defendant, upon the 26th April, 1888, the plaintiff was led to strip himself of all the property of which he was possessed and to hand it over to the defendant. Would any reasonable man in full possession of his senses and not under unusual influence of some kind or other do such a thing? If, instead of having been able to go about at the time when he made the deed of gift the plaintiff had been confined to his bed by illness, what would have been the inference, or if that sickness had ended in death, what would have been the inference? I have no doubt that the rule I have indicated is a [529] sound one, for the purpose of protecting people who from their religious fanaticism or old age and infirmities are under the influence and control of others when they have been influenced into doing what they would not otherwise have done, by requiring that the person seeking to sustain the transaction should show that it was carried through in perfect good faith and in such a way as to show that it was the voluntary and spontaneous act of the party to be affected. Now it does not appear to me, reading the learned Subordinate Judge's judgment and giving full effect to the argument addressed on behalf of the respondent and to the evidence, that there was any proof before the Court below nor is there before us to show us that the transaction of the 26th April, 1888, was one that by our decree we ought to sustain, and speaking for myself I am quite unable to uphold it, taking as I do the defendant's own evidence, which leaves on my mind the irresistible impression that the defendant did take advantage of his relation towards the plaintiff to lead him to do this most improvident act and one which he almost immediately after repudiated. But even if I do not put it so high, it seems to me that the defendant has wholly failed to discharge the burden of showing that the transaction was made without undue influence and in good faith. I hold that in the absence of proof of this kind, the gift to the defendant must be treated as invalid, and than the plaintiff is entitled to the relief he seeks. I therefore am of opinion that the learned Subordinate Judge was wrong in the view, he took, and reversing his decree, I decree the appeal and the claim of the plaintiff, and I direct that a decree be prepared in favour of the plaintiff for the purpose of giving effect to his claim in accordance with s. 39 of the Specific Relief Act. The plaintiff will get his costs in all the Courts.
Mahmood, J.:— I am of the same opinion and wish to add nothing beyond saying that I concur in the doctrine laid down by my brother Straight in Sital Prasad v. Parbhu Lal, so far as the ruling applies to the existence of fiduciary relationship between a priest or spiritual guide of persons in transactions with the latter, [530] so that all the presumptions would be against the defendant in the case, and the decree passed by my learned brother is the only one that could be passed in the case.
Appeal allowed.