P L D 1966 (W (PLP)

Mst. Shafia widow of Khwaja Muhammad brought a suit for cancellation of a gift deed dated 7th June 1958, registered on 25th June 1958, purported to have been made in favour of Abdur Rehman, defendant‑appellant, one of her sons, on the grounds that possession of the land had not been delivered, the gift was invalid being of musha property and that the gift deed had been obtained from her by undue influence fraud, misrepresentation and coercion. She impleaded other co‑sharers in that suit as defendants. The suit was resisted by the donee Abur Rahman, when the following issues were framed on the pleadings of the parties:‑

(1) Whether the suit is not competent in the present form? O. P. D. (2) Whether the gift deed was obtained through undue influence and fraud, if so, whether the deed is liable to cancella tion and gift revocable ? O. P. P. (3) Whether the gift is illegal for want of delivery of possession and "musha"? O. P. P. (4) Relief. The suit was dismissed by the trial Court and thereafter an appeal was lodged by the plaintiff‑donor in the Court of the District Judge. During the pendency of the appeal, the donor died and by order of the lower Appellate Court, Khalilur Rehman (son) and Mst. Mehr Taja (daughter) of the donor were transposed from the array of defendants to that of plaintiffs appellants, while Abdur Rahman donee continued to remain on the opposite side. This appeal has been accepted and the decision of the first Court reversed, and this second appeal is directed against the judgment and decree of the lower Appellate Court.

2. The first point tried to be made out by the learned counsel for the appellant is that because it was a suit for revocation, of gift by the donor and her suit had been dismissed, with her demise during the pendency of the appeal, the right to sue also died. He argues that in Muhammadan Law the right of revocation being a personal right of the donor, the legal representatives of the plaintiff could not continue the suit. Learned counsel for the respondents concedes that in the case of revocation, it being a personal right of the donor, it dies with the donor in case of the donor's death before grant of a decree, or during the pendency of the appeal when the suit has been dismissed in the first instance. He, however, says that as the suit is one for cancellation of the deed under section 39 of the Specific Relief Act read with the various provisions of section 15 to 18 of the Contract Act, the suit is not only competent but also the right to sue survives after the death of the donor plaintiff. He maintains that in the case of revocation of gift under Muhammadan Law no legal defect in the deed need be pleaded or established and it is the sweet will of the donor to revoke the gift in all case before delivery of possession and in cases other than those specified by Muhammadan Jurists, after delivery of possession. Whereas in the case of cancellation of the deed, the transaction of gift is itself assailed because of certain failings attributable to the incapacity of the executant or his free consent. The argument of the learned counsel for the respondents is not without force and I hold that on the pleadings of the parties and the words used in the plaint itself the donor was not asking for the revocation of the gift, but she had come forward for cancellation of the deed of gift on the basis of non‑delivery of possession, undue influence, fraud, coercion and mis-representation and it was independently of her right to revoke the gift in exercise of her powers under Muhammadan Law. The suit not being for enforcement of a personal right, the right to sue survived and the cause could be legitimately continued by the legal representatives of the deceased donor.

3. The next contention raised by learned counsel for the appel lant is that as a matter of fact there has been delivery of posses sion and no undue influence coercion, fraud of misrepresentation was exercised by the donee and the evidence in this regard has been misread by the learned lower appellate Court, because the ingredients of absence of free consent or exercise of undue influence, coercion, fraud of misrepresentation on behalf of the donee have not been proved on the record. He has taken me through the Tamliknama (Exh. D. W. 2/1), the medical certificate (Exh. D. W. 1/1) produced by the donee before the Sub‑Registrar at the time of the registration of deed of gift as also the state ments of witnesses produced by the parties and with reference to the same he has vehemently contended that in view of the endorsement of the Sub‑Registrar appearing on the reverse of the deed, at the time of registration, Mst. Shafia had executed the deed of her own free will and the document was binding and operative as against her. I, however, find that the question of delivery of possession in this case is not free from difficulty. Although it has been said in the deed that possession has been delivered to the donee, yet the fact remains that three Khasra Nos. 2633/146, 2943/1575 and 2615/80 continued to remain in possession of the donor and even according to the statement of the donee he continued giving the donor her share of the produce after the gift and even after the time the donor and the donee had fallen out and the donor had gone to live with the other sons Khalilur Rahman. Therefore, I am prone to hold that possession of the property had not been delivered and the finding of the learned lower Appellate Court, in this regard, calls for no interference.

4. Coming to the question of execution of the document of her own free will by the donor, learned counsel for the appellant has strenuously relied on some observations in Mst. Farid‑un‑nisa v. Munshi Mukhtar Ahmad and another (A I R 1925 P C 204), Nawab Sikandar Begum v. Zulfikar Wali Khan and others (A I R 1938 P C 38) to the effect that it is not necessary to prove independent legal advice in the case of an illiterate pardanashin lady of considerable age. He says that re liance of the lower Appellate Court on this particular aspect being in conflict with the above‑referred decisions of their Lordships of the Judicial Committee, the conclusion is not well‑founded. I have given anxious consideration to this aspect of the case and following with respect the dictum of their Lordships of the Supreme Court in Shamshad Ali Shah and others v. Syed Hussan Shah and others (P L D 1964 S C 143) as also the decision in Nur Muhammad v. Mst. Karim Bibi (P L D 1959 Lah.932) I find that no hard and fast rule can be laid down with regard to dispositions made by a pardanashin lady and each case is to be decided on its own facts. This is clear from the following passage in Lord Sumner's judgment in Mst. Farid‑un‑nisa v. Munshi Mukhtar Ahmad and another:‑-- "The law of India (now Indo‑Pakistan Sub‑continent) contains well‑known principles for the protection of persons, who transfer their property to their own disadvantage when they have not the usual means of fully understanding the nature and effect of what they are doing. In this it has only given the special development, which Indian social usages make necessary, to the general rules of English law, which protect persons, whose disabilities make them dependent upon or subject them to the influence of others, even though nothing in the nature of deception or coercion may have occurred. This is part of the law relating to personal capacity to make binding transfers or settlements of property of any kind. The case of an illiterate pardanashin lady denuding herself of a large proportion of her property without professional or independent advice is one on which there is much authority. Independent legal advice is not in itself essential (Kali Bukhsh Singh's case 36 All. 81). After all, advice, if given, might have been bad advice, or the settlor might have insisted on disregarding it. The real point is, that the disposition made must be substantially understood and must really be the mental act, as its execution is the physical act, of the person who makes it Wajid Khan's case 18 Cal. 545; Sunitabala Debi's case 46 I A

272. If the settlor really understands and means to make the transfer, it is not required that someone should have tried to persuade her to the contrary. Again, the question arises how the state of the settlor's mind is to be proved. That the parties to prove it are the parties who set up and rely on the deed is clear. They must satisfy the Court that the deed has been explained to and understood by the party thus under disability, either before execution, or after it under circumstances which establish adoption of it with full knowledge and comprehension Sudisht Lai's case 7 Cal. 245; Sham Koer's case 29 Cal. 664; Sajjid Hussain's case 34 All.

455. Further, the whole doctrine involves the view that mere execution by such a person, although unaccompanied by duress, protest or obvious signs of misunderstanding or want of comprehension, is in itself no real proof of a true under standing mind in the executant. Evidence to establish such comprehension is most obviously found in proof that the deed was read over to the settlor and, where necessary, explained. If it is in a language which she does not under stand, it must, of course, be translated, and it is to be remembered that the clearness of the meaning of the deed will suffer in the process. The extent and character of the explanation required must depend on the circumstances. Length, intricacy, the number and complexity of the dispositions, or the unfamiliarity of the subject‑matter, are all reasons for requiring an increased amount and efficiency of explanation. Thus a matter not likely to attract the attention of the executant in itself ought not to be relied on as binding, unless her attention has been directly drawn to it (Sham Koer's case 29 I A 137). If the description and explanation have been partial or erroneous, or have not been given at all, the question will then arise, as it arises where there has been no independent legal advice, whether, if proper information had been given, it would have affected the mind of the executants in completing the deed. On the other hand, the doctrine cannot be pushed so far as to demand the impossible. The mere declaration by the settlor, subsequently made, that she had not understood what she was doing obviously is not in itself conclusive. It must be a question whether, having regard to the proved personality of the settlor, the nature of the settlement, the circumstances under which it was executed, and the whole history of the parties, it is reasonably established that the deed executed was the free and intelligent act of the settlor or not. If the answer is in the affirmative, those relying on the deed have discharged the onus which rests upon them. Of course fraud, duress and actual undue influence are separate matters".

5. In the instant case, we have an old infirm pardanashin lady living with one of her sons, who is alleged to have looked after her for sometime and after having secured the gift deed from her showed no desire of keeping her with him any more. The document was executed in a language which was not understood by the illiterate lady, having no independent advice. She was being shadowed by the donee before the Wasiqanawis the Doctor and the Registrar. In the circumstances she cannot be considered to have entered into this transaction, depriving her equally dear and near heirs excepting the donee, of her independent free will. Further, it being a finding of fact, I am not persuaded to reverse this finding in second appeal. Abdul Majid and others v. Khalil Ahmed (P L D 1955 F C 38) refers.

6. The result is that the appeal fails and is dismissed. The parties are left to bear their own costs. K. B. A. Appeal dismissed.