P L D 1967 Lahore 744 (PLP)

Then the conclusion is drawn as follows: "Findings of the trial Court, on this issue, are based on solid facts. Besides this trial Court cited A I R 1933 Lab. 451 and A I R 1931 Lab. 677, to explain the conception of a pardanashin lady. The appellant cannot possibly be held to be pardanashin lady. Finding of the trial Court on that point is correct, and I hereby affirm it." The above treatment of issue No. 1 has been criticised by learned counsel for the appellant on the ground that it contains no application of mind to the evidence by the First Appellate Court but is intended to be a summary of what the trial Court has held, that there is no critical angle in it, and that no attempt has been made to appreciate the correctness or otherwise of the finding of the trial Court.

10. Similarly, issue No. 3, which is the most important one in this case, has been disposed of by the First Appellate Court as follows:‑ "There was no allegation in the plaint that any undue influence was brought to bear upon the appellant. At a last stage, a contention on the point was made. Appellant failed to prove any undue influence. Learned counsel for the appellant has not addressed any arguments to me against the finding of the trial Court on issue No.

3. That finding is affirmed." The above observations create an impression that the question of undue influence was not agitated before the learned Judge at all; yet the learned Judge went into it and gave a decision on the issue. The statement, however, that there is no allegation of undue influence in the plaint is clearly incorrect. Perhaps this error has crept into the judgment of the First Appellate Court because the trial Court's discussion of the issue began with the words: "It may be noted that there is no allegation of undue influence in the plaint itself and I do not see why my learned predecessor has framed an issue on the point of undue influence when there was no such plea." The trial Court was in error because undue influence has been alleged in paragraphs 3, 4 and 6 of the plaint. As mentioned above, she has alleged that from an early age she was under the influence of her relations, and that she lived in active confidence towards Mst. Fatima as well as acted as desired by her. In these circumstances, the lower Courts can be said to have missed the real point of the whole case. Additionally, the contents of the gift deed themselves proved that intrinsically the transaction was not what it purports to be on the face of it and could be the result of the fiduciary relationship in which the parties stood. The reason for making the gift, as mentioned above, according to the gift deed is mainly the obligation under which she felt herself to be, because Zafarullah Khan and Nasrullah Khan bad acted as her guardians and custodians. Another reason for making the gift, as mentioned above, is that they would continue to look after her in the future. In so far as this expectation is concerned, it could not be fulfilled by making a gift in their favour. The amount of the property which was gifted away can be judged by the fact that its total valuation as given in the document is Rs. 14,

500. It is well known that such valuations are always influenced by considerations of expenditure that is involved in the execution of such documents.

11. The above discussion establishes the contention of counsel for the appellant that the First Appellate Court did not apply his mind to the appeal.

12. The second contention can be said to be proved by the repeated observations made by the First Appellate Court as well as the trial Court to the effect that the plaintiff had failed to establish misrepresentation. As to undue influence the trial Court has observed as follows:‑ "In the present case, plaintiff is not even a pardanashin lady and so the above observation (contained in A 1 R 1929 Lab. 309 to the effect that lack of independent advice to the donor does not render a transaction invalid) has still greater force. It was also observed in the above ruling that to treat undue influence as having been established by proof of the relations of the parties having been such that the one naturally relied upon the other for advice and the other was in a position to dominate the will of the first in giving it, is erroneous. That merely proved influence. It must be further established that a person in a position of domination has used the position to obtain unfair advantage for himself and so as to cause the injury to the person relying upon his authority or aid." The suggestion contained in the above observations is that influence was established, but it was not objectionable unless undue advantage was proved. This view has been further clarified as follows:‑ "It is true that plaintiff has been brought up by the mother of defendants but that itself may have been the reason by plaintiff gifted the property in suit to defendants out of love and affection for them. At the most the fact would merely show that the mother of defendants was in a position to influence plaintiff. In view of the above ruling it was still for plaintiff to show that she used that influence in order to obtain the execution of the gift deed by plaintiff. There is however, no evidence in proof of that. Even plaintiff herself has not stated in course of her testimony that any undue influence was exercised by the mother of defendants upon her." The above observations show that the existence of influence was recognised, although there was no allegation to that effect, but it was found to be ineffective for purposes of the case because its misuse was not proved. This view disregards the effect of the deed itself. The object of the deed is to give away the entire property of the plaintiff‑appellant to the two minor children on ridiculous allegations of their guardianship and custodianship. Moulvi Sirajuddin Ahmad contended that it was obvious that the minor children could neither be custodians nor guardians of the plaintiffs‑appellant; therefore, the references should be understood to be to the benevolence of Mst. Fatima. In other words, the names of the minors, Zafarullah Khan and Nasrullah Khan are a screen behind which the entire property, according to Maulvi Sirajuddin Ahmad, has been gifted away to Mst. Fatima. Whether the gift has been made to Mst. Fatima or to her children, there is no doubt that it is an act which has been done for the benefit of those under whose influence she was; and to her own detriment. In the presence of these facts, the; view of the trial Court that nothing mote than mere existence: of influence has been proved is contrary to the basic facts of the case. My conclusion, therefore, is that the second contention of learned counsel for the appellant that both the lower Courts have missed the importance of the existence of fiduciary relation ship and have wrongly been under the impression that the onus was on the plaintiff‑appellant to establish that the document was ineffective, is borne out.

13. The third contention of counsel for the appellant is that the approach of both the lower Courts to the case has been erroneous. In support of this contention he has relied on: (1) Nooro v. Gulzar P L D 1958 Lah. 393. (2) Inche Noriah binte Muhammad Tahir v. Shaik Allie bin Omar bin Abdullah Bahashuan (1928) 26 A L J R 1384 and (3) Satis v. Kalidasi (1921) 34 C L 1529, I may reproduce here a few lines from the judgment of the Lahore case: "The finding of the Court of First Appeal is vitiated by the erroneous approach which is made to the case." Further; "The above facts leave no room for doubt that the respondent stood in a position of active confidence towards the appellant within the meaning of section 111 of the Evidence Act and that the burden lay squarely on him to prove the good faith of the transaction in question." It will be proper to reproduce a page from the judgment of the Privy Council in case of Inche Noriah, at pages 1388‑89; "For the appellant reliance was placed on the case of Rhodes v. Bate, L R 1 Ch. 252, and the passage in the judgment of Lord Justice Turner at p. 257:‑ I take it to be a well‑established principle of this Court that persons standing in a confidential relation towards others cannot entitle themselves to hold benefits which those others may have conferred upon them, unless they can show to the satisfaction of the Court that the persons by whom the benefits have been conferred have competent and independent advice in conferring them.' and the language used by Farewell J., in Powell v. Powell ((1900) 1 Ch. 243 at 245‑6): It has been for many years well settled that no one standing in a fiduciary relation to another can retain a gift made to him by that other if the latter impeaches the gift within a reasonable time, unless the donee can prove that the donor had independent advice, or that the fiduciary relation had ceased for so long that the donor was under no control or influence whatever. The donee must show (and the onus is on him) that the donor either was emancipated or was placed, by the possession of independent advice in a position equivalent to emancipation.' and on the further statement of the learned Judge:‑ ` Further, it is not sufficient that the donor should have an independent adviser unless he acts on his advice. If this were not so, the same influence that produced the desire to make the settlement would produce disregard of the advice to refrain from executing it, and so defeat the rule; but the stronger the influence the greater the need of protection. The real meaning of the rule is that the youth being in the eye of the Court unfit to deal irrevocably with his parent or guardian in the matter of a gift of this kind, must appoint some independent adviser to act for him. It is the action resulting from the advice, not action against the advice, that binds the donor.' On the other hand, the respondent relied on a number of statements of the law which indicate that independent advice is only one of the methods by which the presumption can be rebutted. As an instance, the judgment of Wright, J., in Morley v. Loughnan ((1893) 1 Ch. 736), where the learned Judge says:‑ "The burthen lies on the recipient to show that the donor had independent advice or adopted the transaction after the influence was removed, or some equivalent circumstances." and on the judgment of the Court of Appeal in the case of Re Coomber ((1911) 1 Ch. 723). A few sentences from the Calcutta case would bear reproduction for making the point of view of the appellant clearer. They are as follows:‑ "The general principle which governs in all cases of this sort is that if confidence is reposed and that confidence is abused, Courts of Equity will grant relief. Equity demands in such circumstances the most abundant good faith (uberrima fides) in the transaction between the parties. There need not necessarily be misrepresentation by one party to the other to invalidate the deed; if there is any concealment of a material fact, any failure to disclose material information or any just suspicion of artifice, equity will interpose and pronounce the transaction void and as far as possible restore the parties to their. original right Baker v. Bradley (1856) 14 L J Ch. 7."

14. The above discussion leads to the conclusion that all the three contentions which learned counsel for the appellant has advanced are sound and should be upheld. I accordingly hold that the judgment of the First Appellate Court has been given without application of mind to the facts of the case, that the onus has been wrongly placed by it as well as the lower Court on the plaintiff‑appellant for proving misuse of influence and that both the Courts below approached the case from a wrong angle.

15. The question which arises here is as to whether the case should be remanded for retrial or should be disposed of by this judgment. Counsel for the appellant says that both courses are legally open to this Court, but the better one in the circumstances of this case is to decide the matter in these pro?ceedings because this appeal was filed in 1957 and nine years have already passed waiting for its decision. I am inclined to agree with this view and would like to take up the central point of the case for decision.

16. The central point of this case is that, according to the plaintiff‑appellant, she has been under the influence of Mst. Fatima who could make her do as she (Mst. Fatima) liked and that it was at Mst. Fatima's bidding that she thumb‑marked the gift deed. There is no doubt that the plaintiff appellant was a child when her father died, when her mother died and even when her uterine brother died. After that she lived with Mst. Fatima who looked after her as well as her property. The recital in the gift deed that the minor children, Zafarullah Khan and Nasrullah Khan, were looking after the plaintiff‑appellant is patently wrong. In reality, the gift which was to settle a fortune on Fatima's sons was meant to satisfy the desire of Mst. Fatima herself. The plaintiff‑appellant was nineteen years of age when the gift was made. It is, therefore, contended that she had attained majority ‑?and could understand her problems. But, as pointed out by Farwell, J., in the above‑reproduced quotation at page 16 of this judgment: "the donee must show (and the onus is on him) that the donor either was emanicipated or was placed, by the possession of independent advice, in a position equivalent to emanci?pation." Further:‑ "It is not sufficient that the donor should have an independent? adviser unless he acts on his advice." An attempt appears to have been made in this case to create the impression that independent legal advice was available to the plaintiff‑appellant. For this purpose, Mr. Ali Akbar, D. W. 3, has been brought into the picture. He is said to have advised her as to how she could achieve the end of making the gift, to have accompanied her to the office of the Sub‑Registrar at Wazirabad, and to have identified her there. But it is to be re?membered that he is the gentleman through whom the "Peshbandi darkhast" was made for the benefit of Sardar Khan, the alleged second husband of the plaintiff‑appellant, and that he is also the gentleman who was the Advocate of Sardar Khan when he filed a suit for restitution of conjugal rights. The part that he has played, according to himself, had nothing to do with the advi?sability of making the gift or with the import and effect of it on herself, or even with the drafting of the deed because the deed was allegedly drafted by a scribe and he had merely advised that a gift deed was to be executed. He was not known to her before she sought his advice, but did not charge any fee from her for giving that advice although charged her for going with her to the office of the Sub‑Registrar at Wazirabad. The circumstances are too unconvincing to either create the impression that his advice was independent or that the plaintiff‑appellant was emancipated from Mst. Fatima's influence so as to be in a position to act on independent advice if any was given to her. The way in which she was forced to go through the form of a marriage with Sardar Khan during the subsistence of her marriage with Nazir is the proof of the great hold that Mst. Fatima had on her. It is to be noted that the second marriage took place in spite of the knowledge of the fact that she had already been married to Nazir.

17. A further attempt has been made to indicate that the plaintiff‑appellant was an independent person by referring to the evidence that she contacted Nazir and left the house of Mat. Fatima to marry him. Her own statement is that she was originally betrothed to Nazir by Mst. Fatima, but later on Mst. Fatima changed her mind and wanted her to be married to Sardar Khan. Irrespective of whether her version or the other is correct, the situation in which she was and the circumstances under which she was compelled to act as she did to free herself are to be appreciated before she can be considered to be an inde?pendent person. Her entire property had been contrived to be taken away from her by the registration of the gift deed and she herself was going to be subjugated to the will of the brother of Mst. Fatima by virtue of her marriage to him. Perhaps that green adolescent bowed to the making and registering of a gift deed because she did not appreciate the consequences of a financial transaction ; but when it came to marrying her against her will, she asserted herself with the emotions of a youth and tried to free herself by resorting to independent steps. There is nothing on record to show that she ever did any independent act before the registration of the gift deed.

18. Emphasis has been laid by the First Appellate Court on the trustworthiness of Mr. Ali Akbar, D. W. 3, but it is not necessary to comment on the evidentiary value of his statement because it is clear that his was not independent advice to the plaintiff‑appellant.

19. As a result of the above discussion, I accept this appeal with costs throughout, set aside judgment and decree of the First Appellate Court and of the trial Court, and decree the suit of the plaintiff‑appellant as prayed. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? ????? Appeal accepted.