Syed Zakir Raza vs Madhusudan Dass

Sir Thomas Fredrick Dawson Miller, Kt., C.J.—This is a first appeal from a judgment of the Subordinate Judge of Purnea, dated the 15th February 1915. The plaintiffs in this case are moneylenders and they instituted a suit on the 22nd September 1913 against the defendants to recover a sum of Rs. 6,435-8-0, being the principal and interest due on a mortgage bond dated the 8th May 1909, under which certain properties of the executants of the bond were hypothecated to secure a loan of Rs. 3,000 advanced by the plaintiffs. The executants of the bond are three ladies. They were the widow and two daughters of Ausaf Ali Khan, who died in or before the year 1908 leaving two widows, three sons and two daughters, who succeeded to his property the widows taking a 1 anna share, the daughters one-ninth of the balance and the remainder going to the sons. The estate of Ausaf Ali Khan was somewhat encumbered and he left other debts besides money due on mortgages. These ladies who succeeded in part to his estate found it necessary to borrow a sum of Rs. 3,000 to pay the rent due for their share of the estate in order to says the Patni Mahals which had been advertised for sale by the Zamindar, and there can be no doubt that the mortgage by which they hypothecated a part of their property to secure the loan was a bona fide transaction and justified by the necessities of the case. The widow and two daughters of Ausaf Ali Khan who executed the mortgage in favour of the plaintiffs were Musammat Mahmoudanissa the widow and Musammat Ekbalanissa and Musammat Syedanissa the daughters. Syedanissa is the defendant No. 1. Mahmoudanissa and Ekbalanissa died before the suit was instituted, the widow having before her death made over her property to Ekbalanissa who herself died sometime towards the end of 1912. The other defendants in the suit are the heirs of Ekbalanissa. Defendant No. 2, Zakir Raza, is her son by her first husband Mohsin Raza, who died in 1908. Defendant No. 3, Roshinara, is her daughter by her second husband, Yusuf Raza, whom she married in 1909. Defendant No. 4 is her second husband himself. There is another member of this family, named Nawab Afrosanissa Begum, who may be conveniently introduced here as she played a conspicuous part in the events which led up to the defence of the suit by defendant No. 2. Zakir Raza, the infant son of Ekbalanissa, who is the only one of the defendants who has appeared to contest the suit. Afrosanissa was Ekbalanissa''s mother-in-law, being the mother of her first husband and the grandmother of Zakir Saza defendant No. 2, In 1913, she was appointed guardian of Zakir Raza by the District Judge.

The payment of the principal and interest on the mortgage bond having fallen into arrears, the present suit was instituted against the defendants and as already stated none of the defendants contested the suit except Zakir Raza, a boy of some 8 or 9 years at the time when the suit was instituted who was sued through his guardian Afrosanissa. His defence was, first, that the mortgage bond was invalid as it was not executed in the presence of two witnesses, and secondly, that Ekbalanissa his mother had transferred to him her whole interests in her father''s estate including the mortgaged property by a hiba-bil-ewaz, dated the 17th July 1908, that is some 10 months earlier than the mortgage deed. The validity of the hiba-bil-ewaz was disputed by the plaintiffs. The Subordinate Judge found that the mortgage deed was duly executed and attested. He also found that the deed of gift was not a genuine document, there being no bona fide intention to transfer the possession of the property to the donee, and that the whole object of the transaction was to defraud the creditors of Ausaf Ali Khan whose estate he said was heavily encumbered. He was further of opinion that the three mortgaged properties were not in fact included in the deed of gift as they were not specifically mentioned in that document.

The only properties with which we are concerned in this appeal are the share which Ekbalanissa inherited from her father in the three mortgaged properties which are specified in the mortgage deed at page 5 of the paper-book and which Zakir Raza claims as his own by virtue of the hiba-bil-ewaz. The other mortgagors were content to let judgment go against them.

This appeal was argued at considerable length both as to the facts and as to the law and several points of law were argued before us, but as we have arrived at a clear conclusion on the facts of the case it is not necessary to deal with all the points of law which were raised by the respondents upon the assumption that a different conclusion of fact might he arrived at. As to the first point, I think the evidence was sufficient to justify the finding that the mortgage bond was duly executed and attested. It is true that the Subordinate Judge treated the scribe Sheo Nandan Das who wrote the bond and signed it as such as if he were one of the attesting witnesses to the bond. He gave evidence and said that the bond was executed in his presence and that he saw the ladies sign, but he said that he signed it as Katib and not as a witness. But apart from him there were six people altogether who signed the mortgage bond as witnesses. Some of them have since died, but one of them Murad Baksh gave evidence as to the execution and there were in addition five other witnesses called on behalf of the plaintiffs who supported the plaintiffs'' case. The story told by the plaintiffs'' witnesses agreed in all material respects. It was to the effect that the bond was executed by the ladies in the presence of Murad Baksh, who was himself inside the room where the transaction took place and inside the Pardah actually in the presence of the executants at the time the deed was executed. The other attesting witnesses were on the other side of the Pardah on the verandah. The bond was read over and explained to the ladies. Ekbalanissa signed her own name and also that of Mahmoudanissa, who was illiterate and who made her mark by a thumb impression. Leakat Hussain, who was the husband of the other lady Syedanissa, signed the bond on her behalf as her guardian and he was also present inside the Pardah when the bond was executed by the other two signatories. He then took the deed to the other side of the Pardah and signed it himself on behalf of Syedanissa in the presence of the attesting witnesses, who then signed the document. The scribe Sheo Nandan was outside the Pardah, but says he caught hold of it as it was dangling in the air and saw more or less what was going on inside. He corroborates Murad Baksh as to the manner in which the deed was executed. In the case of a document executed by a Pardanashin lady it is not necessary that the witnesses should be actually inside the Pardah, and there is ample authority to the effect that they are deemed to be present at the execution of the document in such a case although they may be screened off from the executant by a Pardah. The evidence in the present case is, in my opinion, quite sufficient to prove the proper execution of the deed, and that it was attested by at least two witnesses other than the scribe Sheo Nandan. The second defence based upon the hiba-bil-ewaz must also, in my opinion, fail. It is well established that the onus of proving the bona fides and the validity of a gift of this nature executed by a Pardanashin lady lies upon these seeking to claim under it. It appears that Ekbalanissa was living with her own people at her late father''s house in the Purina district when she heard of her husband''s illness She at once proceeded to Lucknow where her husband resided and arrived only in time to find him dead. She remained at Lucknow under the care of her mother-in-law and within one or two months of the date of her husband''s death the hiba-bil-ewaz was executed. It purported to transfer the whole of Ekbalanissa''s interest in her late father''s estate together with a plot of land which she had purchased at Lucknow to her son Zakir Raza, and so far as the evidence goes there is nothing to show that she had any other property at that time. If that is so, the effect of the transfer would be to leave her practically penniless. It is suggested, possibly with some force, that a lady in her position would in all probability be in possession of considerable jewellery and other effects. That may be so, but I have only to observe, that in the present case there is no evidence at all to that effect and I may point out that it is for those who are seeking to take the benefit of a gift of this sort to prove clearly that the gift was a bona fide and valid document. One of the questions which is material in cases of this sort is whether the gift in fact transferred all the property of the donor or a portion only, I do not wish to imply that that question is one which in itself and alone would determine the matter. But it is one of those facts which are always taken into consideration and as I have already said, it is for those setting up the deed to point out and prove what the circumstances connected with the transaction were. Reading the evidence in this case, it seems to me that the influence of Ekbalanissa''s mother-in-law Afrosanissa is apparent at every turn. The three witnesses to the deed were relations of Afrosanissa, Wazir Bahadur was her sister''s husband. Ahsan Raza was her son, a boy of 12 or 13 years. Mirza Inayet Hussain was her Mukhtear-am or general agent and her brother''s brother-in law. The deed itself was written at the instance of Inayet Hussain and on his own admission he never consulted Ekbalanissa about it or had any conversation with her in regard thereto. Moreover, the whole transaction seems to have been conducted in secrecy and in a hurry. None of the neighbors and none of Ekbalanissa''s own people knew anything about it either then or for a long time afterwards. Ekbalanissa had no independent advice nor was any lawyer consulted. The consideration for the gift was a diamond ring provided by Afrosanissa and which no doubt was handed over formally to Ekbalanissa, but what happened to it afterwards is not known. The deed itself is careful to describe the transferred property as the whole interest of Ekbalanissa in her father''s estate, but the specification of the properties transferred is incomplete and inaccurate and no Tauzi numbers are given. The Sub-Registrar before whom the deed was registered was not called as a witness. It is true, as has been pointed out, that one of the witnesses called on behalf of the defendants, who was the scribe who wrote out this deed, does say that when the deed was registered he read it out to Ekbalanissa in the presence of the witnesses, Ekbalanissa being at that time behind the Pardah--she is said to have signed it. That is, except for the statement on the registration itself made by the Registrar, the only evidence there is that this deed was ever read over to or explained to Ekbalanissa and it does not appear that this witness, the scribe who read over the document to Ekbalanissa, was personally acquainted with her. Afrosanissa was the only person who is alleged to have discussed the matter at all with Ekbalanissa, and she no doubt could have given very useful and material evidence as to the state of mind of Ekbalanissa before and at the time when this deed was executed, but she for some reason which has not been explained has not given evidence in this case and, therefore, we have not had the advantage of hearing from anybody anything to show what was the real state of mind of Ekbalanissa or any evidence to show that she had ever expressed any intention of executing a deed of this sort or that she ever fully appreciated what the effect of it was. The deed itself recites that the gift is made to Zakir Raza, a minor of tender years, through his pateral grandmother and guardian Nawah Afrosanissa Begum, and it continues in this way: "I the donor have put in my place the donee through the aforesaid guardian in possession and occupation of the gifted property and I shall get recorded the name of my son aforesaid donee in the Purnea Collectorate in the columns of Zamindars and Patnidars by getting my name removed therefrom." It may be observed here that according to the Muhammadan Law Afrosanissa was not in fact the natural guardian either of the person or property of her grandson, nor had she at that time been appointed guardian. The natural guardian of his property would be his paternal grandfather, who was alive and living apart from his wife Afrosanissa. It has been stated by the learned Vakil on behalf of the defendant that the grandfather, Afrosanissa''s husband, was of unsound mind but there is no evidence of this before us, and even if it is so Afrosanissa was not the natural guardian of her grandson. This matter is perhaps not one of very great importance, and I would not refer to it but for the fact that when the defendants were confronted with the argument that Ekbalanissa''s subsequent conduct in dealing with the property after the hiba-bil-ewaz had been executed was entirely inconsistent with that of a person who had transferred her property, because she both sold and mortgaged parts of the property in her own name, they asked us to treat this dealing of the property by Ekbalanissa as if she were herself the guardian of her child. If that is so, it seems to me that it is entirely inconsistent with the statement in the deed itself that Afrosanissa was the guardian of Ekbalanissa''s infant son. Although the deed recited that the son''s name will be recorded in the Collectorate and in the columns of the Zamindari and Ekbalanissa''s name will be removed therefrom, no attempt was made at any time to transfer the property to the name of Zakir Raza in the Collectorate at Purnea or in the Zamindar''s sherista, although Ekbalanissa returned to Purnea a few months later and resided there until her death in 1912. It was contended, as I have already said, that Ekbalanissa remained in possession of the property as guardian of her son, but even she was not the legal guardian of his property, and there is evidence that she was in possession as owner and not as guardian of Zakir Raza and that she made her own collections separately from her co-sharers, and indeed the whole of Ekbalanissa''s subsequent actions point to the conclusion either that she was not aware of the effect of the deed that had been executed or that she never had any real intention of transferring the property, either of which findings would be fatal to the validity of the gift. No accounts were kept on behalf of the transferee by Ekbalanissa or by anybody else and parts of the property were sold in January 1912 by Ekbalanissa and her co-sharers for a sum between Rs. 19,000 and Rs. 20,000 in order to pay off mortgage and money decrees of an earlier date, and the Kabalas by which this property was transferred described Ekbalanissa as the owner of her share of this property and so far from making any mention of the hiba-bil-ewaz, they recited that except for the mortgage to pay off which the proceeds of the sale were utilized, no transfer in respect of the land in question had been effected by way of sale, gift, mortgage, etc., of any sort at any place, and the property was transferred to the possession of the vendee. The Subordinate Judge found that the estate of Ausaf Ali Khan was heavily encumbered at his death and he found inter alia that the hiba-bil-ewaz was executed in order to defraud or delay the creditors of Ausaf Ali Khan. There is some justification on the evidence for arriving at this conclusion, but how far that finding may possibly be justified is a matter of opinion. There certainly was evidence that the estate was encumbered to a considerable extent, but I am not inclined to base my decision upon such a finding. There may have been some such motive in the mind of Afrosanissa which induced her to bring about the transfer, but I am not satisfied that Ekbalanissa was any party to any such proceeding, that is to say, that Ekbalanissa herself ever had any indention of executing this dead with a view to defending the creditors. It does appear to me, however, after a careful review of the whole of the evidence, that the defendants have entirely failed to discharge the burden which is upon them of making out that Ekbalanissa knew and appreciated the effect of the deed or that she ever had any intention of passing the property to her son. At the time in question she was a young woman. Her exact age is a matter of conjecture, but probably she was not much more than about 20 years old. The circumstances under which she found herself when she arrived at her mother-in-law''s house were calculated to cense her acute mental distress, her husband having just died. She had none of her own people to consult with or advise her, no legal advice was taken and the only person who is alleged to have spoken to her on the subject of the gift was her mother-in-law Afrosannissa, who, as I have said, has not been called as a witness and whose interest it was to see that her grandson was provided for even at the expense of the mother. Her motives are not far to seek. Ausaf Ali Khan''s estate was to some extent at all events encumbered and there were money debts in addition. Moreover, Ekbalanissa was a young woman who might marry again and have other children, as in fact Happened before her death. Then again the hurry in which the whole thing was rushed through within two months at most of her husband''s death, the secrecy attending the transaction, the absence of legal advice or assistance which is apparent from the careless manner in which the deed is drafted, are matters calculated to cast considerable suspicion upon the bona fides of those responsible for the transaction. No explanation is given of any of these matters and Afrosannissa, whose agent took a leading part, no doubt by her instructions, in carrying the matter through, is not called as a witness and the conduct of Ekbalanissa in dealing with the property after the deed was executed is entirely inconsistent with that of a person who had knowingly transferred her property to another. I have no hesitation in holding that the defendants have failed to discharge the burden of proving that the deed of gift was a bona fide document or that the donor ever had any intention of passing the property therein referred to.

As I said at the beginning of this judgment, there were other defences raised by the respondents upon the assumption that the facts might be found in favour of the appellants. I have already said that in my opinion there was no intention on the part of Ekbalanissa to defraud or defeat her creditors and I need not deal further with that point, but the main contentions of the respondents in addition to those which I have already mentioned were that the gift was invalid, as no sufficient specification of the properties had been made in the document, that is to say, no sufficient specification of the mortgaged properties had been set out in the deed of gift and that in fact the mortgaged properties were not shown to have been included in the hiba-bil-ewaz and that under the registration law such specification is necessary, and in these circumstances the document must be taken not to have been duly registered and cannot affect the mortgaged properties. The only other point of any substance which was taken was that the deed of gift itself was void under the Muhammadan Law of Moosha, on the ground that there was confusion of the property. Having regard to the finding of fact at which I have arrived in this case it is unnecessary to deal with these points.

There is one other matter which I think I ought to deal with before concluding this judgment. It was contended, as I have said, that Ekabalnissa was really after the execution of this deed in possession of the property as guardian of her minor son and that her action in executing the two sales of a portion of the property, which it is contended had been transferred to him, was done by her on his behalf as his guardian, and that these sales were legally justified on the ground that they were made in order to pay off the debts which were due either under mortgages on the property or for money decrees obtained against the estate of Ausaf Ali Khan and that in either case she would be perfectly justified in selling the property to carry out that purpose, that the minor son would be bound by it and, therefore, that there was nothing inconsistent in her attitude in effecting these sales with the suggestion that she had in fact transferred the property to her son. Once that proposition is accepted, it becomes quite clear that the mortgage in question in this suit, which was executed in order to raise money to pay the rent of the property then due, would be equally binding upon the minor Zakir Raza and, therefore, on that ground alone it would be obvious that Zakir Raza could have no defence to this action brought on the mortgage bond. On realizing where the result of their contention led and that if the dealings of Ekabalnissa were justified on the ground which I have mentioned the defendant No. 2 would have no just grounds for opposing the mortgage deed, at a late stage in the proceedings we were asked to deal with the matter solely upon that ground and to confine our decision to dismissing the suit on that ground only, and not to determine the question of whether or not the hiba-bil-ewaz was a valid document. We were asked to pass a decree merely in favour of the mortgage suit without deciding whether the hiba-bil-ewaz was a valid document or not. But as from the very start one of the issues in the case has been whether Ekbalanissa made a gift of her property to defendant No. 2, a point which the plaintiffs were quite justified in asking to have determined as it was a matter set up by the defendants themselves and as the greater part of this appeal has been argued upon the question whether or not this gift to defendant No. 2 was a valid instrument, I do not feel inclined now to dismiss that part of the case from consideration and merely to grant a decree without deciding the matters which have been raised both in the Court below and on appeal before us. To do so would, in my opinion, merely be encouraging fresh litigation upon a question of fact which has been raised and thoroughly discussed in the present suit, and, therefore, I think that in this suit we are entitled to come to a conclusion upon the question of validity or otherwise of the hiba-bil-ewaz. In my opinion this document cannot stand and this appeal should be dismissed.

There is only one other matter which I wish to say a word about, and that is as to the form of the decree in the Court below. By the judgment of the Subordinate Judge the suit was decreed with costs and he ordered that the defendants to pay the plaintiffs this day six months what will be found due on the bond on taking an account with interest at the bond rate during the period of grace on the principal sum, and the decree which issued in pursuance of that judgment is in the same form. It was pointed out to us that in awarding interest at the bond rate the learned Subordinate Judge has taken no account of the period between the time when the suit was instituted and the date of the judgment. This is obviously an oversight on his part, and we think it ought to be rectified and the decree ought accordingly to be in a some what modified form. It should be ordered that the suit be decreed with costs and that the defendants pay to the plaintiffs within six months from the date of the decree of the Subordinate Judge such sum as shall be found due on the bond on taking an account with interest at the bond rate from the date of the suit to the expiry of the period of grace on the principal sum and after the period of grace the aggregate amount will bear interest at 6 per cent per annum. Costs will also hear interest at 6 per cent per annum throughout. In default of payment as directed, the mortgaged properties should be sold and the sale-proceeds applied to the satisfaction of the decree according to law. The present appeal will be dismissed with coots. The respondents will also get their costs on the principal sum and interest found due between the date of institution of the suit and the date of the decree in the lower Court.

Jwala Prasad, J.

I do not think I can usefully add to the judgment of the learned Chief Justice just delivered.

The suit out of which this appeal has arisen was an ordinary suit to recover sums due, principal and interest, on a mortgage bond, dated the 8th May 1909. Defendant No. 2, who is the appellant here, Zakir Raza, was impleaded as a party to the mortgage suit on account of his having inherited some shares in the mortgaged property from his mother Ekbalanissa. In the plaint there is no reference to the deed of gift set up by defendant No. 2, nor is there any mention of his having been made a defendant on account of his occupying any other capacity than that of an heir to Ekbalanissa. The other heirs of Ekbalanissa did not enter any appearance. Defendant No. 2, the appellant, in his written statement set up a title independent of the mortgagor Ekbalanissa, executant of the bond. He asserted that he was in possession of the mortgaged property on the strength of a deed of gift executed by his mother Ekbalanissa long prior to the mortgage bond in suit. The deed of gift was dated the 17th July 1908. The defendant, therefore, raised issue No. 2 set forth in the judgment of the Subordinate Judge, viz., "whether Ekbalanissa made a gift of the property to defendant No. 2 as alleged by him, and if so, was the mortgage bond binding upon defendant No. 2." This issue was seriously pressed by the defendant No. 2 and elaborate evidence to prove the hiba-bil-ewaz and his title to the mortgaged property based upon that hiba was offered in the Court below. Upon the trial of that issue the learned Subordinate Judge held that the hiba set up by the defendant No. 2 was not an operative document and that it was not executed by Ekbalanissa with a view to transfer any interest in the property conveyed by the deed, and that defendant No. 2 was not in possession of the property on the strength of that deed. In the present appeal before us the same point was strenuously urged by the learned Counsel appearing on behalf of the appellant. It was not at all suggested in the course of the long address of the learned Counsel on behalf of the appellant that the said issue was improper and irrelevant and that it should not have been tried by the Court below and that we in appeal ought to refuse to determine it. Only yesterday the learned Vakil who appeared for the appellant on account of the absence of his Counsel, while replying to the arguments for the respondents, for the first time urged that the issue should he expunged from the record and that an ordinary decree based upon the mortgage bond should be given without any determination of the title of the defendant based upon the hiba set up by him. It is impossible to concede to the contention of the learned Vakil at this stage and to ignore the hiba set up by defendant No. 2. According to the plaintiff be inherited a portion of the mortgaged property from his mother Ekbalanissa and had necessarily to be made a party to the suit. He, however, claimed to have acquired the property by virtue of a deed of gift executed by Ekbalanissa in 1908, and it was for him in the first instance while filing his written statement to take up the position of an heir of Ekbalanissa or to stand upon the deed of gift set up by him. Having chosen the latter position, it was incumbent on the Court to decide that position in order to give effect to the mortgage decree that was to be passed in the case, so that the purchasers in execution sale might not be in doubt or difficulty as to the title to the property in suit. I am quite alive to the principle that in an ordinary mortgage suit, title paramount to and independent of the mortgagor is not a necessary issue and should, as far as possible, be excluded from the trial of a mortgage suit, but that is not an absolute principle which should apply to the circumstances of each case. Where the leaving of such an issue undetermined would lead to inconvenience or hardship, it is proper that it should be tried in a mortgage suit. This was the view taken in the case of Hare Krishna Bhowmik and others Vs. Robert Watson and Co. . The facts of that case apply to those of the present case. I, therefore, agree with the learned Chief Justice that the issue raised by the defendant No. 2 was properly decided in the Court below and should as well be decided by us in this appeal.

The defendant set up a title derived from a deed of gift executed by Ekbalanissa. There can hardly be any question that it was for him to prove that the deed was validly executed and was intended to transfer the property to him. The evidence on the point has been summarized by the learned Chief Justice and I need hardly repeat it. Suffice it to say that it has not at all been proved in this case that the document was read over and explained to Ekbalanissa, or that she executed it knowing fully the effect of the transfer of all the property then held by her, in favour of her son defendant No. 2. A faint attempt was made to prove it from the evidence of Syed Muhammad Nawab, witness No. 3, the scribe of the deed. This man belongs to the Registration Department and his profession is that of a scribe. He admits in his evidence that Ekbalanissa did not appear before him, nor did she hold any conversation with him. He, therefore, is not competent to prove that the document was explained to Ekbalanissa. Nawab Wazir Bahadur, witness No. 1, examined by commission on behalf of the defendant, a relation of Ekbalanissa, was the proper person to prove the reading over of the document and the explanation of it to Ekbalanissa. He does not say a word about it. Ahsan Raza, another witness to the deed who is referred to as having been present when the document was read over and explained to the Musammat, was not asked a single word about it. Afrosannissa the mother-in-law of Ekbalanissa, the only competent person who could prove the circumstances connected with the execution of the deed, has not been examined at all it has, therefore, not at all been proved in this case that the document was properly executed by Ekbalanissa after fully understanding its nature and effect.

In the deed of gift the grandmother Afrosannissa is said to be the guardian for the purposes of the deed. The mother Ekbalanissa knew full well that under the Muhammadan Law she had no right to be the guardian of the property of her minor son, and it is with this knowledge of the law that it has been mentioned in the deed that Afrosannissa was the guardian of the minor for the purposes of that deed, Afrosannissa did not at all deal with the property on behalf of the minor. Ekbalanissa continued to be in possession on her own account. There is no reason to disbelieve the evidence on the point given by the plaintiffs'' witnesses, one of whom is the Tahsildar who made the collections in respect of the property in dispute. It is futile to contend that the mother managed the property on behalf of the minor. To my mind her interest was antagonistic to that of the minor. It became so undoubtedly in the year 1809, a year after the execution of the deed of gift when she married for the second time. Her children by the second marriage are the defendants Nos. 3 and 4. Under the Muhammadan Law the mother''s right to the custody of an infant is forfeited by her marrying a stranger. In 1909, therefore, after her second marriage Ekbalanissa could not possibly be said to have been dealing with the property in the interests of her minor son, defendant No. 2. The mortgage bond itself executed by her along with her mother and sister goes to show that she mortgaged the property not intending to act on behalf of her minor son, but in her own right as holding possession of the property as heir of Ausaf Ali Khan. This was only ten months after the execution of the deed of gift. Throughout her conduct has been that of asserting the right in her independent of or antagonistic to her being guardian of her son, defendant No. 2, as stated by the deed of gift. There can, therefore, be no doubt as to the absence of intention on her part to transfer the property by virtue of the deed of gift, which as has been shown so thoroughly by the learned Chief Justice was executed in secrecy shortly after the death of her husband at a place where she had no relations to advise her and in circumstances where she could not possibly know the consequences of divesting herself of all interest in the property. We have been through this record for a week and reading it carefully the only impression which has been left upon my mind, and I believe upon the mind of the learned Chief Justice, is that the document was not an operative document and that it was executed on the advice of Afrosannissa, for some purpose best known to her and not disclosed at the trial. Some inkling of that purpose might be had from the evidence of defence witness No. 1, Ahsan Raza, that �the document was executed because Ekbalanissa thought she was only a woman and her son only a minor and fearing lest some one else might take possession of the property she executed the hibanama," I have no hesitation, therefore, in agreeing with the view of the learned Chief Justice in this matter.

It is unnecessary to enter into any detail as to the contention of the learned Counsel on behalf of the appellant regarding the proof of the mortgage bond in suit. The bond was executed not only by Ekbalanissa but by her mother and her sister. The document was properly read over and explained to her, and the evidence of Murad Buksh read with the evidence of the scribe can leave no manner of doubt that the execution and attestation of the document was carried out according to the formalities prescribed by the terms of the Transfer of Property Act. I agree, therefore, that the mortgage bond was duly executed and was for a consideration of Rs. 3,000 due as rent from the property of the mortgagors. I agree that the appeal should be dismissed with costs.