P L D 1959 (W (PLP)

(6) Relief. In support of her case the respondent made a statement in the witness‑box. She said that her husband was a Chowkidar in the Railway and she was living with him at Sukkur but that their relations were strained. On the death of her father, she took up residence with the appellant. The appellant asked her to execute in his favour a power‑of‑attorney in order that he may manage the land. He said that her husband may get a transfer of the property in his favour and then divorce her. He promised to pay Rs. 500 annually. She was an illiterate person and the appellant, who was her brother, had great influence over her. She had been deeply affected by the death of her father and her relations with her husband were not good. She therefore agreed. Then the appellant took her to Toba Tek Singh and got a deed executed. She had appeared before the Sub‑Registrar and had stated whatever was contained in the document was correct. The respondent stated further that she was a pardanashin woman who had never before executed any document. Two months after the execution of the document, she had gone to her husband at Sukkur. The appellant paid her the lease money for two years but third time refused to do so, saying that he had got a gift deed executed. The husband of the respondent stated that the respondent was a simpleton and could not understand her interest. For this reason their relations became strained many a time. The gift deed had been executed in his absence and without his consultation. In the third year the appellant had refused to pay the lease money. The respondent was a pardanashin woman. The respondent also produced as a witness Raja Sardar Muhammad, the son of the appellant. He stated that his father was a very clever man and the respondent was a simpleton. The appellant had told the witness that he had got executed from the respondent a power‑of‑attorney. For two years the appellant had paid the respondent Rs. 500 a year as lease money. The witness admitted under cross‑examination that his father had married again and that the respondent had a daugter of marriage able age. He did not accept that he had been betrothed to her, but admitted that as yet he had not been betrothed to any other person.

6. This concludes the evidence produced by the respondent. The appellant in his statement as his own witness said that when his father died the respondent became entitled to a share, but she stated even during the mutation proceedings relating to the death of his father that she did not want her share and would abandon it in his favour. A mutation of inheritance had, however, been sanctioned in her favour too and therefore she executed a gift deed in his favour. This deed had been executed by her on a full understanding of its contents and she had admitted its execution before the Sub‑Registrar. She had then appeared before the mutation officer and had supported the gift. The appellant produced the scribe of the deed, Abdul Majid, Petition Writer, and the marginal witnesses, Ch. Wali Muhammad, a Pleader, and Daulat Khan, a Lambardar. Abdul Majid stated that he had written the deed according to the instructions of the respondent. Chaudhari Wali Muhammad said that the parties belonged to his village and that he had purchased the stamp for the gift deed though he did not remember at whose instance. He was at some distance when the gift deed was actually scribed and did not know whether it was under the instructions of the respondent that it was scribed. The respondent, he said, did not observe pardah in the village but did observe pardah outside the village. Daulat Khan Lambardar stated that he had signed the deed as a marginal witness at the instance of the appellant. He did not know the contents of the document. He had identified the respondent before the Sub‑Registrar as he was told by the appellant that she was his sister. The appellant also produced Raja Shams Khan, the Sub‑Registrar, who proved the endorsement on the deed of gift and stated that he had explained the contents to the executant. Some other evidence was also produced to which it is not necessary to refer. Ali Muhammad, Lambardar of Chak No. 331, deposed that he had identified the appellant and the respondent before the mutation officer and that before the mutation officer the respondent had admitted transfer of possession and had given her consent to the attestation of the mutation.

7. The learned Civil Judge found under issue No. 3 that there was no proof of the contents of the deed having been explained to the respondent. Under issue No. 4 he found that she was entitled to be treated as a pardanashin woman even though she was not observing strict pardah. He also found that the deed was the result of the exercise of undue influence. Issue No. 5 he answered in the negative for want of cogent proof. He over ruled the technical objections of the appellant pertaining to issues Nos. 1 and. 2.

8. On the question as to whether the deed had been executed by the respondent after its contents were explained to her, we are not inclined to agree with the learned civil Judge. We agree that the respondent is entitled to the same protection to which a pardanashin woman is entitled. She does not observe strict pardah but it is admitted even by Daulat Khan who had been produced by the appellant that she was wearing a veil and that he could only see a small part of her face. In any case, she is an illiterate woman belonging to a village. The rule relating to pardanashin woman is a rule by which the law gives protection to those who by presumption are not fully able to take care of their interest. Every illiterate woman, whether she is pardanashin A or not, could have this protection unless circumstances are brought on the record to show that she was of an exceptional character, well able to manage her affairs. We would, therefore, not be satisfied in this case with proof of execution unless it was of the same standard as is required in the case of a pardanashin woman. But we are unable to hold in the present case that the plaintiff was not fully apprised of what was contained in the deed. The Sub‑Registrar has stated that the deed was explained to her. Even without his statement his endorsement would be relevant evidence of execution of the document, but in any case, he had been produced and allowed to be cross‑examined. There is nothing in his cross‑examination which would cast any doubt on his statement. We will presume in the absence of indication to the contrary that the statement which he is making is correct. Had the contents of the document been complicated to any extent, even the statement of the Sub‑Registrar may not have been sufficient to prove that the executant fully understood the implica tion of what she was doing. But we are to deal here with a simple deed of gift and if the Sub‑Registrar told the plaintiff that according to the deed she was giving away her property to her brother, we do not see why she should not understand.

9. The learned Civil Judge does not state in his judgment as to why he does not accept the statement of Sub‑Registrar. He deals with the endorsement on the registered deed but holds that it is not admissible in evidence under section 60 of the Registration Act. The reason he has given is that the endorsement under section 60 is a certificate by the registering officer while the endorsement with which he is dealing simply states that the parties to the deed had accepted the contents as correct. This endorsement, he says, is not a certificate and should not be admissible under section 60 of the Registration Act. He is of the opinion that the endorsement falls under section 35 of the Registration Act. We reproduced below sections 58, 59 and 60 which are relevant for the discussion :‑ "58. (1) On every document admitted to registration, other than a copy of a decree or order, or a copy sent to a registering officer under section 89, there shall be endorsed from time to time the following particulars, namely :‑ (a) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assignee or agent of any person, the signature and addition of such representative, assignee or agent ; (b) the signature and addition of every person examined in reference to such document under any of the provisions of this Act ; and (c) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration in whole or in part, made in his presence in reference to such execution. (2) If any person admitting the execution of a document refuses to endorse the same, the registering officer shall neverthe less register it, but shall at the same time endorse a note of such refusal." " S.

59. The registrering officer shall affix the date and his signature to all endorsements made under sections 52 and 58 relating to the same document and made in his presence on the same day." " S. 60. (1) After such of the provisions of sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word `registered', together with the number and page of the book in which the document has been copied. (2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in section 59 have occurred as therein mentioned." It will be observed that under section 60 (2) the certificate is admissible for the purpose of proving that the facts mentioned in the endorsements referred to in section 59 have occurred in the manner as therein mentioned. One of the endorsements mentioned in section 59 is that which is made under section 58 and the endorsement under section 58 relates to the admission of execution of the document by parties to the document. The admission therefore, of the parties to the document, which is endorsed on a deed by the registering officer, is evidence under section 60 of the fact of the execution. The mere fact that it is in accordance with section 35 that the Registrar questions the parties as to whether they have executed the deed or not does not mean that the endorse ment will not fall under section 58 when section 58 expressly provides for such an endorsement. After holding that the endorsement did not fall under section 60, the learned Judge considered whether, if the endorsement was made under section 35, it would be relevant in proof of the execution of the deed, and reached the conclusion that although it would be admissible if proved, but in the present case it could not be used as evidence because only the Sub‑Registrar had been produced and the Registration Clerk, in whose hand the endorsement appears, had not been produced to prove the endorsement. The learned Civil Judge did not cite any authority for the proposition that in order to prove such an endorsement it was essential to call the clerk as a witness and we have little doubt that the proposition has little basis in law.

10. While we do not agree that the execution of the document had not in this case been proved, we have no hesitation in agreeing with the learned Civil Judge that this deed is not to be upheld. That the appellant was in a position to influence the respondent cannot be denied. The father of the parties had died only about a month and a half before the deed was executed and it can well be imagined that the respondent had been deeply affected by that death. The appellant was her elder brother. The respondent stated in her deposition as a witness that she was afraid of him. That may have been so. But even if she was not afraid, she was liable to be influenced by him on account of the affection she bore him and on account of the attendant circumstances. Then there is the fact that there was nobody to advise her. Her relations with her husband may or may not have been strained, but admittedly he was not consulted. In fact, it is not the case of the respondent that any person was consulted. The Court does not allow those who hold a position of authority or influence to abuse that position 1f a person who is in a position of authority or influence gains an advantage, it is for him to satisfy the Court that the act of gift was the result of the free exercise of will by the donor and that the gift was made after a full appreciation of its effect. Here the respondent is admittedly an impecunious person. Her husband is only a Chowkidar of the Railway. She has four children. She has given away the whole of the property which she inherited from her, father, property which, considering her position in life, is very valuable to her. A brother with a proper sense of fairness and justice would not have accepted a gift in these circumstances at all, but, in any case, he should have asked her to consider the, matter fully and to have independent advice before she took the step, for there was no good reason why she should deprive herself, her children and her husband of the benefit of this land.

11. The principle which is applicable to these cases was explained by their Lordships of the Privy Council in Dai g Soharah v. Chabak Binte (A I R 1927 P C 148). It will be convenient to reproduce here the headnote :‑ "The relief given by a Court of Equity is a secondary consequence of the principle that a person, standing in a relationship in which authority or influence may be supposed to exist, cannot hold a mere gift without making it clear that the intention to make it was not the result of his influence. The relationship itself does not necessarily preclude the making of the gift ; but the burden lies on the donee to show that there was no such influence as to the source of the gift. But he can discharge the burden incumbent on him by showing that the relationship notwithstanding, the donor knew completely what he was doing, and acted of his own complete free will. With certain kinds of fiduciary relations, such as that of a solicitor taking a gift from his client, this is, obviously much more difficult to establish than in others where the duty is less definite. Courts of Equity have therefore exercised a certain freedom in their decisions as to where and how the principle must be applied." It was for the donee to show that the donor acted with a full understanding of the implications of his act and that the gift was not the result of influence used.

12. In Inche Noriah v. Shaik Allie (A I R 1929 P C 3) their Lordships of the Privy Council explained with reference to Allcard v. Skinner ((1888) 36 Ch. D 145) that a Court would set aside a gift on the ground of public policy even if there was no wrongful act at all on behalf of the donee unless it was proved that the gift was the spontaneous act of the donor. We will reproduce the whole quotation from Allcard v. Skinner because it explains the reasons why the Court of Equity sets aside gifts in such cases :‑ "The question is : Does the case fall within the principles laid down by the decisions of the Court of Chancery in setting aside voluntary gifts executed by parties who at the time were under such influence as, in the opinion of the Court, enabled the donor afterwards to set the gift aside? These decisions may be divided into two classes : first, where the Court has been satisfied that the gift was the result of influence expressly used by the donee for the purposes : secondly, where the relations between the donor and the donee have at or shortly before the execution of the gift been such as to raise a presump tion that the donee had influence over the donor. In such a case the Court sets aside the voluntary gift, unless it is proved that in fact the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justifies the Court in holding that the gift was the result of a free exercise of the donor's will. The first class of cases may be considered as depending on the principle that no one shall be allowed to retain any benefit arising from his own fraud or wrongful act. In the second class of cases the Court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising there from being abused." The reason why these gifts are set aside is that the 'Court wants to prevent the abuse of the position of influence. It is not necessary to prove a wrongful act on the part of the donee. It is sufficient that the gift may have been the result of influence.

12. It is enough for the purpose', of setting aside this gift that the appellant has failed to satisfy us as to the spontaneous nature of this gift. The burden was on him to prove that the gift was not the result, in any manner, of the exercise of influence. This burden he has clearly failed to discharge. The only circumstance on which learned counsel for the appellant relies in support of the voluntary, nature of the gift is the fact that in June 1950 the respondent had wade a statement before the mutation officer consenting to the gift. We do not see how this circumstance is necessarily inconsistent with the respondent having made a gift on account of the influence exercised over her by the appellant. She had made the gift because she was a sister and she may very well have stuck to the gift which she made in January 1950 even in June 1950 when she made the statement.

13. The technical objection to the form of the suit has been repeated before us. It was urged that the plaintiff should have sued for possession of 7/24th share which she inherited from her father. There is no force in this objection. So far as 1/24th share is concerned, not only the right of the plaintiff but her possession to this extent has been conceded. So far as 7/24th share, is concerned, the plaintiff has sued for cancellation of the deed of gift. Under section 39 of the Specific Relief. Act, any person against whom exists a deed which is either void or voidable can file a suit to have the deed adjudged void and the right to file such a suit is not conditional upon seeking any further relief to which the party may be entitled. The condition about further relief exists only in section 42 where a declaration is sought. A suit for cancellation is not filed under section 42 of the Specific Relief Act but under section 39, which creates an independent right. Even though the plaintiff does become entitled by virtue of the cancellation of the deed to possession of the property, she is not bound to sue for possession in this suit. In fact, learned counsel for the ‑appellant has been forced to concede that in a suit under section 39 the plaintiff is not bound to ask for further relief. He contends, however, that the relief of cancellation being an equitable and discretionary relief, we should refuse to exercise this equitable jurisdiction in favour of the plaintiff unless she sued even for the further relief which is open to her. It is surprising that the appellant should appeal to us in the name of equity. There is no equity in refusing the relief to a sister, from whom a brother has secured a gift by the use of undue influence.

14. This appeal fails and is dismissed, but as there is no appearance on behalf of the respondent, there is no order as to costs. K.M.A. Appeal dismissed.