P.N. Mookerjee, J.
1. I have had the advantage of reading, in advance, the judgment, prepared by my learned brother. I fully agree with him in his conclusion that the appeal should fail and be dismissed and that there should be no order for costs, either here or in the Court below.
Bijayesh Mukherji, J.
2. The decision of this appeal by Pannalal Sen the unsuccessful plaintiff, in the Court of first instance, turns principally on the question whether the two documents listed below are vitiated by undue influence or not-
(i) A registered deed of gift, as respects a pucca one-storied house with amongst others, land admeasuring 3 cottahs 13 Chhittacks and 32 square feet, being part of 66/3 Kaibartapara Lane, Salkia, within the jurisdiction of Malipanchghora Police Station in the Town of Howrah, executed on 7th February, 1951, by Muktalal Sen, since deceased, a brother of the appellant Pannalal, in favour of Ashalata Ghose, the first defendant, who is the wife of Manmatha Nath Ghose, the second defendant, a pleader practising in the Howrah Courts,
(ii) A registered agreement or annuity bond executed on the same day (7th Feb. 1951), between the said Ashalata Ghose and Muktalal Sen, whereby the first party Ashalata binds herself, her heirs and legal representatives, amongst other things, to maintain and tend the second party Muktalal, as also to stand for the expenses of his pilgrimage to Puri, Navadwip and Brindaban, durante vita, that is, so long as he is alive in default, to pay him Rs. 40/- a month for maintenance, medical treatment, pilgrimage and the like.
2. The appellant Pannalal died during the carriage of this appeal and has since been substituted by his heirs.
3. The facts set out in the plaint need not be referred to further than as follows:
Late Kanailal Sen bequeathed by will, the immoveable property he had, to his four sons -- Pannalal (the original appellant), Jaharlal, Muktalal, (a name which bulks so large in this litigation), and Bejoylal, The property in suit happens to be the most valuable part of Mukta-lal's share, rendered still more valuable by the addition he had made, with his own funds, of a room and a kitchen.
'Of less than average intelligence and almost uneducated', Muktalal 'was by habit stingy.' He married when he was 'past forty', but only to become a widower at 50 or thereabouts. 'He cooked his own food.' And his was a 'style of living' so poor, even though he, a money-lender at that, 'earned considerable sums of money' as a draper, and 'had a comfortable monthly income' too by letting out three out of the four rooms, in his house -- the house in controversy here.
Such a one fell so easy a prey to the 'deep-laid plan' of Manmatha, 'a wily and veteran lawyer', aided and abetted by Ashalata, 'his able wife'. The plan worked itself by-and-by in the manner following-
(i) An 'outward show of sympathy for his hard lot', emanating from Manmatha and Ashalata, was followed by periodic invitations to dinner which was served by Ashalata herself.
(ii) Manmatha used to tend his lawsuits and thereby won his confidence.
(iii) More, Manmatha fostered in him 'the idea that the rooms in his house could be let out at a much higher rent', once the three existing tenants were got rid of, nothing to say of construction of a first floor which would enhance the letting value of the property so much the more, in view of the prevailing house famine, and got indeed, three actions in ejectment, 'full of false allegations', raised by him against the three tenants, with a view to getting rid of them.
(iv) Again, it was constantly impressed upon Muktalal, a man of weak intellect, and befriended by none, that Ashalata was a mother unto him, so much so that he was even told: 'in some previous birth she must have been your natural mother. Such indeed is the dream she had dreamt'
(v) The 'sop' of enabling him to acquire religious merit by providing for his visit to 'famous places of pilgrimage' was thrown out too.
Having thus obtained 'complete mastery' over Muktalal, 'a man of weak mentality', Manmatha and Ashalata, 'with the help of their creatures, Ganesh Chandra Dutta, Haradhan De and Panchanan Chatterjee', as also others, 'managed to get up (the) two documents', referred to above. But Muktalal did not understand the effect and implication thereof. He was even denied the opportunity to consult any disinterested person or lawyer.
The three ejectment suits meanwhile succeeded and the tenants left. Result: Muktalal became the lone occupant of the house in controversy. 'On the specious plea' of providing for his safety and comforts, Manmatha posted his nephew Saroj Kumar Ghose and Ganesh Chandra Dutta, the writer of the two documents, in the house. But the real object was to keep Muktalal under surveillance, so that he might not contact others, and get to know what was what. Still, he was disillusioned in no time; more, he started giving out his mind to undo what he had done. And, six months and six days after the gift, to be exact, on 15th August, 1951, his dead body highly decomposed, with a piece of cloth round the neck, was discovered 'in a standing posture', leaning against the walls of the privy in the house, Saroj, Manmatha's nephew, informed the police, who, however, after 'a perfunctory inquiry', reported it to be a case of suicide.
Hence the suit (i) for setting aside the deed of gift, as also the agreement, If necessary, (ii) for declaration of title to the property in dispute and possession thereof, as also (iii) for mesne profits.
4. The defence entered into by Manmatha and Ashalata in a joint written statement is, inter alia, a denial of the very various allegations made in the plaint, coupled with an admission of the deed of gift and the agreement which, however, it is pleaded, 'were the result of free and unfettered deliberations on the part of Muktalal' who had had the benefit of consultations with his friends and a disinterested lawyer, and was not therefore, a victim to any manner of an undue Influence.
5. The learned Subordinate Judge finds -
1. Muktalal, sufficiently intelligent, used to manage his own affairs. It is not believable that such a one would be so easily influenced in the manner, it is said, he was.
2. What Muktalal did not get from his near ones, in love, affection and kindness, he got in ample measure from Manmatha and Ashalata. The impugned documents were, therefore, the result of his 'free and unfettered mind', nothing like any undue influence having been anywhere near.
3. Muktalal had had the benefit of independent advice.
6. In view of such findings, he dismisses the suit. Hence the appeal.
7. The appeal has been opened on two points. One, the impugned documents cannot stand, tainted and infected as they are with undue influence of Muktalal's pleader, Manmatha. Two, looked at a little below the surface, the deed of gift is, in reality, a transaction between Muktalal, the client, and Manmatha, his pleader, bound in a fiduciary character to protect the interests of the former (Muktalal); far from having afforded protection, such a one -- a fiduciary -- gained advantage, which, therefore, he must hold, under Section 88 of the Trusts Act, 2 of 1882, for the benefit of that one: Muktalal. On no other point have we been addressed.
(The judgment then enters into pleadings, as also evidence, and continues:)
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In the circumstances, ejectment suits, as also their timing, are matters to be remembered for ever, and not to be forgotten in three to four years' time. Thus, having so pretended amnesia, Manmatha colours his evidence over-much, and cannot, therefore, be believed in safety on the point I am on now. These are the things contrary to what would have otherwise passed as good evidence. In sum, I disbelieve him, on such a scrutiny of his evidence; not because he is a party. The reason is plain: in spite of being a party he is as much a competent witness as any other: Section 120, Evidence Act, 1 of 1872, and Jogendra Krishna Roy v. Kurpal Harshi & Co., AIR 1923 Cal 63=ILR 49 Cal 345=35 Cal LJ 175.
25. There is another feature in Manmatha's evidence, which calls attention, and may conveniently be disposed of here. Dr. Bhandari, while introducing Muktalal to Manmatha, said: 'Be sympathetic to Muktalal who has none to look after him.' A clear distinction is there between the faction of a statement and the truth thereof. Since Dr. Bhandari is not called as a witness, the former (whether or no the statement was made) when relevant, does not give rise to hearsay; the latter (whether what Dr. Bhandari said is true or not) does. This is what the Privy Council, the Board consisting of Lord Radcliffe, Lord Tucker, and Mr. L. M. D. De Silva (by whom the reasons for allowing the appeal are delivered), points out in Subramaniam v. Public Prosecutor, (1956) 1 WLR 965 at p. 970:
'Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible When the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by evidence, not the truth of the statement but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness ..... in whose presence it was made.'
In the context of the facts here, what counts is the truth of what Dr. Bhandari told Manmatha: 'here is Muktalal with none to look after him.' But it is hearsay and inadmissible. Dr. Bhandari having not been examined. The attempt to get from Manmatha, on cross-examination, whether Dr. Bhandari posted him or not with 'any antecedent' of Muktalal, (hinting obviously his having been an idiot and the like), has failed. Had it succeeded, hearsay would have blocked its way, in the absence of Dr. Bhandari as a witness.
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27. Thus, there is much to criticise in the evidence led by both parties. But, to sum up, there seems to be no escape from the following:
1. Muktalal had had a cloth shop set up for him by his father in 1918,
2. He was a money-lender too: paragraph 2 of the plaint, though Pannalal's sworn testimony is not just that: he did not run the money-lending business; his sister Chandan Kumari did, but with the money given her by Muktalal.
3. Not only did he earn, but also he had saved, with the result that he left behind him Rs. 19,000/- in cash, in a bank, the accounts of which he himself used to operate, a statement Pannalal concludes his cross-examination with. He left behind him too (i) moveables worth Rs. 4,000/- to Rs. 5,000/-, if not more, as is the trend of Pannalal's evidence, on cross-examination, (ii) cloths said to have been distributed to the poor, and (iii) 12 plus 10, i,e., 22 cottahs of land, (as Pannalal says), out of which the house with an area of a little less than 4 cottahs has been the subject of the gift in controversy.
4. He constructed 'a new room and a kitchen out of his own funds.'
5. He looked after his own litigation.
6. He did collect rents from the tenants.
These are all in the realm of admissions.
So the finding cannot be, as the plaint wants it to be, that Muktalal 'was of less than average intelligence' or 'a man of weak mentality'. The finding, upon the whole of the evidence, instead, is that he was certainly of average intelligence, if not much more, business-minded, and capable of fending for himself: just the finding come to by the learned trial Judge. On top of that, he was a miser -- a matter on which the parties, in the midst of their so many differences, are agreed, as noticed: Manmatha going so far as to say:
'He was so miserly that he did not want to spend any money for a square meal a day.'
28. Such was the man: Muktalal, not a callow youth, but one aged 55, intelligent, able, and haying behind him a long experience in business for some thirty-three years (1918-1951), where he must have learnt and learnt in various ways, hot the least amongst them having been that sort of valuable learning through one's own mistakes. And the house in controversy gifted was the property of such a one, who had the complete freedom to do with it, whatever he liked. That is indeed trite. Still what Lord Commissioner Wilmot said more than 200 years ago in Henry Toye Bridgeman v George Green, (1757) Lord Chief Justice Wilmot's cases and opinions, page 58=97 ER 22, is worth recalling today with pleasure and profit, if I may say so, with respect.
'..... our laws, very unfortunately for the owners, leave them at liberty to dissipate their fortunes as they please, to the ruin of themselves and their families. The Roman laws drew a line between liberality and profusion; they, very wisely for the public, and very kindly for the parties, considered immoderate extravagance -- 'inconsulta largitio' -- as a distemper of the mind, and treated a 'prodigus' as a mad man. ..... They thought it safer for the public, as well askinder to individuals, to lay by their estates, whilst they were under the tyranny of their passions, and reserve them for their use, when under the direction of their reason. But our laws strike no such boundary; ..... every man may give a part or all of his fortune to the most worthless object in the creation. .....'
Fifty years later, Lord Eldon, L. C., emphasized in Huguenin v. Baseley, (1807) 9 RR 276=14 Ves 273, that it was not for the Court to undo instruments, executed not only voluntarily, but with that knowledge of all their effect, nature, and consequences. Said his Lordship:
'To the question, whether, these instruments being such as I have represented them, the consequence is, that this Court shall undo them, I answer, no; if they are the pure, voluntary, well-understood, acts of her (the executant Mrs. Huguenin's) mind.'
Again, fourteen years later, In Goddard v. Carlisle, (1821) 9 Price 169=147 ER 57, Lord Chief Baron Richards had before him an instrument by the plaintiff Goddard granting an annuity to Maria Sloper, the wife of Solicitor Sloper, who was Goddard's mother's brother and his father's executor too, and observed:
'..... this instrument could not beaffected, if it were shown to be a mere voluntary deed proceeding purely from the unbiassed act of the party; because every one has a right to dispose of his own property, in any way in which he may think fit, however foolishly he may act in so doing; and this Court cannot disturb such disposition, if there were nothing else in the case to give us jurisdiction -- if, in short, it were purely a voluntary gift.'
Baron Graham adding:
'Courts of Equity have certainly nothing to do with purely voluntary deeds, nor can they disturb acts of mere generosity.'
29. Now, how is the gift of 7th February, 1951, by Muktalal in favour of Ashalata like? Has it been a voluntary gift? It is the pure, voluntary and well-understood act of Muktalal? Does the whole of the evidence reveal circumstances sufficient to establish that the gift was the spontaneous act of Muktalal? Such are the questions to which I address myself now.
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59. Such then are the facts and circumstances that emerge upon the whole of the evidence. Do they not show almost conclusively that Muktalal did broach and intend the bounty to Ashalata? Indeed, the pressure of events, one after another, made him do so.
60. 8. Has the gift by Muktalal been a most thoughtless act by which he reduced himself to beggary
If yes, it goes a long way to void the gift. Because, it then becomes plain to be seen that Muktalal was not the master of his psychological home, and could not therefore, know what he was doing on 7th February, 1951. None but a recluse deliberately courts extreme poverty, Muktalal, for all I see upon evidence, was no recluse, religious-minded though he was.
61. Here also evidence Is the answer. And the answer is: on 7th February, 1951, the date of the gift, Muktalal had, at the least, the following assets:
1.Cash in bank...Rs. 19,0002.Moveables...Rs. 5,000, if not more.3.Cloths said to have been made a gift of to the poor...Value not dis-closed in evidence.4.Land - 12 plus 10 cottahs out of which, say, 4 cottahs go with the gift, leaving a residue of 18 cottahs, value of which, in a place like Howrah, some 4 years after partition, cannot be less than...Rs. 86,000
Total...Rs. 60,000
Going by the deed of gift, Muktalal got by his father's will a little less then 16 cottahs of land: exhibit A. Pannalal makes it 12 cottahs instead of 16, though the probated copy of the will, which would have shown what's what, In the custody of his nephew and witness, Tinkari, he does not care to produce. Let this discrepancy be ignored. Let it be taken for granted instead that Muktalal had 22 cottahs of land, just as Pannalal says, out of which 4 cottahs went with the gift. Even then, on the date of the gift, Muktalal had assets worth some Rs. 60,000/-, in addition to his right, conferred by the agreement of the same date, Exhibit B, to use the room etc. he has been using in the gifted house, throughout his life, and more than one room constructed on the first floor, to use any room there for his residence, nothing to say of free food and the like. How much could one of Muktalal's type need to live decently, even if he, a miser, had wished to? It cannot, therefore, be found that his was an act so poor in foresight that it can be regarded as his own act.
61A. 9. Was legal advice essential in a transaction as this
That legal advice was taken is another matter, which will be considered in due course. The question, this paragraph starts with, questions the very necessity of any legal advice in all circumstances here. Here was Muktalal, so miserly that he loved money for more than himself. Necessarily, therefore, he was living miserably. His miseries increased a lot over since the death of his sister and wife in or about 1945. And within two years from that, he had come in contact, closely enough by-and-by, with Manmatha, Ashalata, and all, of a compact family, from whom he received affection and consideration. That had melted the heart of a miser and made him resolve to make the gift he did to his second mother Ashalata. So the stream from which the bounty followed is visible, and so clearly too. What would a lawyer advice him in the face of such resolution and determination to make the gift with no complication anywhere? 'Do not go in for the gift' might have been the advice, only to merit the riposte from one like Muktalal: 'No; I will.' There the matter would have rested in a stalemate, for a short while, doing little good to Muktalal, who would have proceeded in the end to make the gift he was bent upon making.
62. No more tenable Is the old doctrine that in every case 'it is the action resulting from the advice, not action against the advice, that binds the donor', to quote from Farwell, J., in Powell v. Powell, (1900) 1 Ch 243. Nor is it valid to maintain today as a matter of course that 'the same power which produces one (the gift or donation) produces the other (refusal to heed advice to refrain from it), and, therefore, instead of removing such an imputation, it is rather an additional evidence of it', to quote from Lord Commissioner Wilmot in (1757) Wilm 58=97 ER 22 (supra). Each case must depend on its own facts, and there can be no formula of universal application. That the position at law is now so, -- elastic, and not inflexible, as In the past, -- appears to be clearly borne out by the Privy Council decision in the Inche Noriah case, Inche Noriah v. Shaikh Allie bin Omar, 1929 AC 127=AIR 1929 PC 3 =1929 Mad WN 105, the case of a gift by an aunt, feeble and old, to a nephew who managed his property, where though the gift ultimately failed, Lord Hailsham, Lord Chancellor, delivering the opinion of the Board, laid down the following amongst other propositions, after a review of some, out of a number of cases cited, all not easy to reconcile unless treated as governed by the particular facts of the case then under discussion:
A. Independent legal advice is not the only way in which the presumption of undue influence can be rebutted.
B. If evidence Is given of circumstances sufficient to establish the fact that it was the spontaneous act of the donor, there is no reason for disregarding them, merely because they do not include independent advice from a lawyer.
C. Independent legal advice, when given, may well rebut the presumption, even though such advice was not taken.
63. So, I ask again, what was there, for legal advice to be called for, in a simple matter as this? Overwhelmed by the kindness and motherly affection of Ashalata, just what he was starving for, for months and years, Muktalal made up his mind to make the gift he did, keeping enough and to spare for him. The facts and circumstances catalogued in the foregoing lines tell. Death of Chandan Kumari, the sister followed soon enough by the death of his wife, a downcast Muktalal with nobody to call his own, cooking his own food, not helped, but persecuted, by his relatives, who, by their conduct, proved themselves neither near nor dear to him, the kindness and hospitality of Ashalata and her people, tending him even in his illness, the find in her by the religious-minded Muktalal of a second mother radiating affection and consideration he had not tasted for long, the idea of gift originating from him as a token of his gratitude, the transaction bearing the stamp of righteousness and naturalness too, and far from being an improvident act, by which he was certainly not landed in penury, Muktalal abiding by the gift even more than three months after its execution, the simple nature of the transaction: a gift simpliciter, he was determined to make and had every right to make, not needing any legal advice, --all go to show that it was the spontaneous act of Muktalal, a miser converted by love, generosity and affection into a giver. Independent legal advice, even if refused, would not mar such a gift, in all circumstances here, just as the law laid down in the Inche Noriah case, 1929 AC 127=AIR 1929 PC 3=1929 Mad WN 105 (supra) is. More, spontaneity of the gift having been proved, the necessity of independent legal advice eliminates itself. That is also the law laid down in the same case: vide proposition B in paragraph 62 ante.
64. All the same, this is but one way of looking at the litigation in hand. There is still another way of viewing it. As Sir John Romilly, M. R., observed in Walker v. Smith, (1861) 29 Beav 394, a case of gift by Miss Walker to Smith, her solicitor, certain legacies apart;
'There are always two points to be considered in these cases. First, whether the donor really made the gift; and secondly, whether the influence of the donee or recipient of the bounty was improperly exercised on the donor to induce the donor to make the gift in question.'
The first point has been considered. And the finding has been come to that Muktalal, the donor, really made the gift to Ashalata. Even so, this finding will fail her, if the determination of the second point reveals improper exercise of influence on Muktalal to induce him to make the gift he did. But the very considerations which sustain the determination of the first point do sustain that of the second point too, unless there be anything to the contrary. More of which in paragraph 69 et seq. infra.
65. The donee or recipient of the bounty here is Ashalata. wife of Manmatha, admittedly Muktalal's pleader, at all relevant time. The attempt to show that during the crucial period, a little on this side or that side of 7th February 1951, Muktalal's pleader was not Manmatha, but Kshitish Chandra Datta, looks puerile on the face of it. The evidence of this pleader, Kshitish, the eighth witness of the defendants, read with the hajiras, Exhibits 5 and 5 (a), the entries in Kshitish's diary, Exhibits G series, and the Vakalatnama, Exhibit J. shows that he was pressed into service to tend the carriage of Muktalal's litigation in a very minor way during December 1950 to early in March 1951, so that Manmatha's name might not then appear, Manmatha having come out of his disguise from March 17, 1951, as the hajiras. Exhibits 5 (b) to 5(d), filed by him that day and on subsequent days go to show. To put it mildly, all this shows Manmatha in an odious light, and is quite in keeping with the ingeniousness his evidence on cross-examination reveals:
'It cannot be taken that the transaction In suit was a transaction between me and Muktalal. The transaction in suit took place between my wife ...... and Muktalal.'
66. A little reflection makes it clear that such ingenious and wishful thinking on the part of Manmatha cannot stand. Indeed, a gift by the client to the pleader's wife is as good or as bad a gift to the pleader himself. If it is a taboo to the husband to avail himself of the influence which he, being the pleader, manifestly possesses and may mischievously misapply, the interdict which applies to him will, sure enough, extend to affect his wife. In 1821, Lord Chief Baron Richards, presiding over the Court of Exchequer, laid down the law as Under in (1821) 9 Price 169=147 ER 57 (supra):
'There Is no difference in principle for this purpose between a gift of this sort to a man's wife and one immediately to himself, if the gift to the wife be affected by undue means on the part of the husband. We must, therefore, treat it as if it were a direct gift to the husband himself.'
Baron Graham observing:
'..... and the grant being to the wife is much too thin a disguise to make any difference in this transaction.'
And the transaction was a grant, by the plaintiff Goddard, of an annuity of 200 to Maria, wife of Sloper, solicitor, executor and uncle of Goddard, evincing not the client-solicitor relationship only,
67. In 1895, Lopes, L. J., could recognize no distinction between a gift made to a solicitor himself and one made to his wife, the reason being-
'It is obvious that a solicitor might benefit largely by a gift to his wife, and there would be similar temptation to exercise undue influence in respect of such a gift. The wife might make over the property to him the day after it had been given to her.'
Liles v. Terry, (1895) 2 QB 679=73 LT 428. And the transaction there was still less a transaction between solicitor and client only. Mrs. Terry, the recipient of the bounty, was no doubt the wife of Mr, Terry, the solicitor for Miss Jane Liles, the donor. But she was not that and that only: she was the niece (sister's daughter) of the client Jane Liles, and as such a person on whom the client might naturally be disposed to confer a benefit, apart from any influence arising from the relationship of solicitor and client. Still the transaction went down, the grant to the wife having been regarded as the grant to the solicitor husband.
68. Such being the law, and the reason of the law, -- reason which is based on justice and good sense, -- it is not possible to accept the contention on behalf of the respondents that the very fact that the object of the bounty is Ashalata, not her husband Manmatha, the pleader, makes all the difference, standing between Manmatha and the application of another branch of law, said to be inflexible, by virtue of which 'an attorney shall not take at all', as the relation between him and client, 'and the power which his situation gives him over his client makes it impossible to distinguish between free agency and undue influence and imposition,' to quote again from Lord Commissioner Wilmot's judgment in Bridgeman case, (1757) 97 ER 22=Wilm 58 (supra). The object of bounty being Ashalata instead of Manmatha, therefore, makes no difference, for the simple reason that there is nc distinction between a gift to a solicitor and one made to his wife. On the line of a number of cases cited, the word 'solicitor' is being used. But that Includes Manmatha, a pleader. An advocate in Aberdeen, is the same as an attorney or solicitor elsewhere: McPherson V. Watt, (1877) 3 AC 254, Just so here too: a pleader in Howrah is the same as an attorney or solicitor elsewhere.
69. That is not the problem. The problem is: how stands here the law which, it is said, prescribes that a solicitor shall not take from his client, his taking giving rise to an irrebuttable legal presumption of undue influence? The appellants contend, such law, enunciated in a long line of English cases, applies here with all its rigour, compelling the Court to hold that Manmatha's influence was improperly exercised on Muktalal to induce him to make the gift and precluding the Court from even entering into evidence of rebuttal. The respondents, on the other hand, contend: On the view taken in some of the English cases, Muktalal's gift may fail. But the law here is codified. The leading statutory provisions are Section 111 of the Evidence Act, 1 of 1872, Sections 88 and 89 of the Trusts Act, 2 of 1882, and Section 16 of the Contract Act, 9 of 1872, -- none of which ipso facto void a gift by the client to his solicitor.
70. Let the two opposing contentions be examined, one by one. To the appellant's contention first. The case in hand is no doubt confined to the relation between solicitor and client But what needs to be looked into, for a proper apprehension of the law, is the variety of relations of confidentiality. Take the case of Mitchell v. Homfray, (1882) 8 QBD 587, a case of physician and patient, where Lord Selborne, L. C., observes:
'I know of no difference between solicitor and client, on the one hand, and parent and child on the other.'
With this in the forefront of one's consideration, let a short review be made of cases where the law has been laid down that a gift by a client to Ms solicitor or by one to another, both In like position, raises an irrebuttable presumption of undue influence:
1. (1757) 97 ER 22=Wilm 58 (supra), a case of an overbearing footman and an imbecile master, an unscrupulous attorney. Lock by name, having revelled 'in masks and disguises' and thereby lent his aid as 'accessory to the robbery' of the master. The relation between them (attorney and client) precludes the attorney from taking at all, as noticed in paragraph 68 ante, where an excerpt from Land Commissioner Wilmot's judgment in this case has been quoted. What remains to be quoted yet is a little more, showing how the doctrine of irrebuttable presumption of undue influence is extended to other relations as well:
'Marriage brocage bonds, bonds to lewd women from heirs apparent upon contingencies -- this Court sees the parties in a situation so liable to be unduly influenced and imposed upon, that it will presume they were so, and admit no proof to the contrary.'
2. Welles v. Middleton, (1784) 1 Cox 112, a case of certain deeds (including a gift) by a client in favour of two attornies, related in some degree to the client executant, where Lord Thurlow, L. C. reiterates the law as under:
'In the case of attornies, it is perfectly well known that an attorney cannot take a gift while the client is in his hands, nor instead of his bill. And there would be no bounds to the crushing influence of the power of an attorney who has the affairs of a man in his hands, if it was not so: but once extricate him, and it may be otherwise.' 3; Wood v. Downes, (1811) 18 Ves 120, where Lord Eldon, L. C., commenting on the case just mentioned, observes:
'The case of (1784) 1 Cox 112 is an extremely strong case of the kind. The transaction was liable to no objection as between Man and Man, but it was overturned on the great principle, -- the danger from the influence of attornies or counsel over their clients while having the care of their property, and whatever mischief may arise in particular cases, the law, with the view of preventing public mischief, says that they shall take no benefit derived under such circumstances.' 4. Montesquieu v. Sandys, (1811) 18 Ves 302, is a case where the client was indebted to the solicitor in a larger sum, for which he deducted 100 as the price of the plaintiffs' interest in the Advowson, before delivery of his bill. On such facts, Lord Eldon, L. C., again, sees nothing like a gift or reward to an attorney taken by him beyond the amount of his bill for service done, but restates the principle wisely established by cases:
'...... an attorney shall not take from his client a gift or reward while standing in that relation, the connection between them subsisting, with the influence attending it, though the transaction may be as righteous as ever was carried on. ' 5. (1821) 9 Price 169=147 ER 57 (supra): Lord Chief Baron Richards does not go so far as to lay down: a voluntary gift for a solicitor never-
'I do not mean to say that a solicitor may not, on any occasion, take a voluntary gift, from a person for whom ha may be engaged to transact law business.' adding, however, 'but where it can be shown that he was so connected with his client, as to have obtained any considerable influence over him, there it is that the Court will always lean against the effect of the acts of his client in his favour, to the client's prejudice.'
of whatever age the client may be. If the Court leans so always, it really comes to saying that the presumption of undue influence, founded on 'client-solicitor' relationship is incapable of being met or rebutted.
71. To digress a little, translating the decision of Richards, C. B., to the case in hand, the fact that Muktalal was 55 or thereabouts on 7th February, 1951, the date of the gift, may not go far, when the Court has to weigh Manmatha's conduct to his client Muktalal. But, upon the whole of the evidence, can it be said that Manmatha had any considerable Influence over him? In my judgment, that cannot be said, in the face of the facts and circumstances which go before and have been summarised in paragraph 63 ante. The reason of the gift lies there, not in any influence of Manmatha over Muktalal, not a moron, but quite an Intelligent man and a successful businessman too, capable of holding his own against Manmatha, not much of a lawyer even, in spite of some 30 years' standing, at the time of the trial, as his evidence, a poor specimen, by any standard, reveals:
'I joined the Bar in 1925. I do not really understand ...... that the relationship between a lawyer and his client ia a fiduciary one. I know that such relationship is a matter of great trust. I am not aware of any such law that it prohibits any transaction between a lawyer, and his client.'
72. There is another consideration yet. What is the yardstick of influence -- considerable or inconsiderable? In the Carlisle case, (1821) 9 Price 169=147 ER 57 yardstick or no yardstick, considerable influence was writ large upon the facts. Goddard, the plaintiff, was of very tender years when his father died, leaving behind him real estates, which he (Goddard) became possessed of. Solicitor Sloper was Goddard's mother's brother, as also his father's executor. Such a one had the superintendence of Goddard's all manner of pecuniary affairs. And when Goddard came of age, Sloper -- solicitor, executor and uncle -- was indebted to him for 10,500, which he did acknowledge, pressed by Carlisle, a mutual friend, and for which he promised to give security. His promise remained a, promise. Worse still, he prevailed upon Goddard to grant Maria, Sloper's wife and Goddard's aunt, an annuity of 200 for life, by indenture of bargain and sale, to Carlisle and Sloper Jr. in trust for her, without Carlisle's knowledge and execution of the deed by him. That done, Sloper Sr. executed a deed of assignment, in consideration of his debt, to Goddard, of 10,000, of his lease-hold house and furniture, in trust, to be sold to pay the debt. That little even was not allowed to remain long. Persuasion again by Sloper Sr., -- uncle, solicitor, and executor, all combined. And Goddard returned the furniture to Maria, only to be received by Sloper Jr. in his house. No other security, though promised, was made available to Goddard. And the property assigned did not on the sale produce more than 300, where the debt ran to 10,500. Compare such a one, Goddard, -- nephew, ward, and client -- brought up by Solicitor Sloper from infancy to adolescence, with Muktalal, the intelligent, in his relation with Manmatha? You then compare the uncomparable. Goddard was one of fantoccini moving just as Sloper Sr. wanted him to move; so much so, that instead of exacting security for his debt, he was offering, and in fact offered, more and more to Sloper Sr. So, considerable influence of Sloper Sr. over Goddard waa patent. Nothing like this can be said of Manmatha and Muktalal, save that the relation of pleader and client was there. Such relation simpliciter cannot prevail over the overwhelming facts and circumstances pointing to the spontaneity of the gift by Muktalal -- a well-understood act of his mind. It is not suggested for a moment that Manmatha had had no manner of influence over Muktalal, even though the amount of influence may well defy measurement in very many cases. As Bacon, V. C., puts it in Morgan v. Minett, (1877) 6 Ch D 638:
'These Courts have not those golden scales which are said to be used in the mythological heaven to regulate the destinies of mankind.'
Even without the golden scales, the Courts, from time to time, do estimate the degree of confidence existing and the amount of influence acquired, as Sir Montague E. Smith did, delivering the opinion of the Privy Council in thg Pisani case, Henry Peter Pisani v. Attorney General for Gibraltar, (1874) 5 PC 516, in the manner following:
'Their Lordships do not go the length of regarding the case as one not between solicitor and client. The relation of solicitor and client existed between Pisani, a barrister, practising, as is usual in Gibraltar, as an attorney too, and Miss Porro. Such relation made it necessary for Pisani to show that the bargain he made with Miss Porro was a fair one, But in dealing with the facts, the circumstances of Pisani's employment may be considered, and the amount of influence estimated. By that test, no high degree of confidence existed: not much influence had been acquired either.
73. To resume the review of cases laying down that an attorney shall not take -- a review which has been left incomplete in paragraph 70 ante, because of a little digression in the succeeding two paragraphs, here are a few more:
6. Holman v. Loynes, (1854) 18 Jur 839 (843)=23 LJ Ch 529, is a case where Turner, L. J., lays down:
'The rules against gifts are absolute, and against purchases they are modified,' the sole exception being this:
Gifts from clients to their attorneys can be maintained only, when not only the relation has ceased but the influence may rationally be supposed to have ceased also.
7. Tomson v. Judge, (1855) 3 Drewry 306, What is at issue here is the validity of a conveyance of a certain real estate for a consideration of 100, though its real value is upwards of 1200, by Chamberlayne to Thomas Gulliver Judge, Chamberlayne's solicitor and son of one for whom Chamberlayne during a long course of years entertained feelings of great regard and respect. Indeed, Chamberlayne was Judge's patron. The nominal consideration of 100 has been there to save stamp duty which would have been some trifle higher on a deed of gift. The conveyance is, therefore, really a deed of gift. Upon such facts Kindersley, V. C. observes:
'A solicitor can purchase his client's property even when the relation subsists; but the rule of the Court is, that such purchases are to be viewed with great jealously, and the onus lies on the solicitor to show that the transaction was perfectly fair, that the client knew what he was doing, and in particular that a fair price was given, and of course that no kind of advantage was taken by the solicitor. If the solicitor shows that the transaction was fair and clear, there is no difference between a purchase by him and by a stranger.' But what about a gift? Sir Richard Torin Kindersley, the Vice-Chancellor, continues:
'Is the rule with regard to gifts precisely the same; or is it more stringent? Less stringent it cannot be. There is this obvious distinction between a gift and a purchase. In the case of a purchase the parties are at arm's length, and each party requires from the other the full value of that which he gives in return. In the case of a gift the matter is totally different, and it appears to me that there is a far stricter rule established in this Court with regard to gifts than with regard to purchases, and that the rule of this Court makes such transactions, that is of gift from the client to the solicitor, absolutely invalid.' 8. In re Holmes' Estate, (1861) 3 Giff 337, is a case of an alleged gift to a solicitor from his client, where the Vice-Chancellor recognizes the same exception as in (1854) 18 Jur 839=23 LJ Ch 529 (supra): Once the influence, which a solicitor may be supposed to exert over his client, has been removed, the solicitor may become the object of his client's bounty, and may receive from him a gift, which will be valid both at law and in equity. The rule, to which this is an exception, is, therefore, as before: a solicitor shall not take a gift from his client, so long as the relation of solicitor and client, or even an influence arising from such relationship, exists.
9. (1877) 6 Ch D 638 (supra). One Reverend H. C. Morgan, vicar of Goodrich and a county magistrate, was unmarried and a comparatively poor man. Such a one succeeded, on the death of his brother, in 1864, to a large estate of real and personal property with an. income of 7,000 a year, Minett, a clerk to the magistrates of whom Morgan was one, acted as Morgan's solicitor too. More, on terms of close intimacy, Morgan provided for an allowance of, .100 a year to Minett and was in the habit of lending him money as well. On Morgan's spontaneous request in September 1874, two releases, written by Minett in his own hand, of various sums lent to him, aggregating 3000, were executed by Morgan--one on October 1 and another on October 2, 1874, without a particle of explanation why one release was on one day and the other on the next day. A further release of 500 was there on February 1, 1875. In July 1875, Morgan died, aged 84. The executors of his will sued to set aside the three releases, as having been executed by the testator under the professional influence of Minett and without proper independent advice. Upon such facts, Bacon, V. C., finds and lays down-
A. The relation of solicitor and client existed between Morgan and Minett.
B. Not that that relation prevents a client bestowing his bounty upon his solicitor. But what the law requires is that, considering the enormous influence which a solicitor in many cases must have over his client, in order to give effect and validity to a donation from a client to his solicitor, that relation must be severed. The parties must be at arm's length. The relation must have ceased to exist.
C. A client inclined to bestow bounty upon his solicitor is at perfect liberty to do it, and the solicitor is at perfect liberty to accept it, but both of them must act under circumstances which preclude the possibility of suspicion, for suspicion is enough. Suspicion is the basis of that rule of influence, and nothing could have been easier for Minett than to say: 'Let us put an end to that relation and let us stand as strangers to one another.'
D. Save as above, the rule, requisite for safety of the society, is: a solicitor shall not take a gift from his client while the relation subsists.
10. (1881) 8 QBD 587, (come into the reports in 1882), is a case of physician and patient Baggallay, L. J., reiterates the rule:
'The proposition has been repeatedly laid down in equity that gifts made to persons standing in a confidential relation cannot be upheld,' But the gift in 1871, by Mrs. Geldard, then at Gainford, to the defendant, her medical adviser, of two cheques, one for 500 and another for 300, stood, for two reasons. One, from 1872, Mrs. Geldard ceased to live at Gainford and went to reside at Barnard Castle, about 8 miles distant, where she continued to reside, without the medical advice any longer of the defendant, until her death which happened in July 1876. So the relation of physician and patient had ceased some three to four years before the donor's death. Two, in spite of that, and in spite of any effect produced by such relationship having been removed, she intentionally abode by what she had done. (In the case before us, Muktalal Intentionally abode too by what he had done, though not for that long as Mrs, Geldard had done, but only for three months and a little more: paragraph 63 ante. It might have been longer than Mrs. Geldard's but for the untimely and unnatural death of Muktalal in mysterious circumstances.)
11. 1895-2 QB 679: paragraph 67 ante. Let it be recalled that it is a case of a gift by Jane Liles, a spinster aged 77 years, to her sister's daughter, Mrs. Terry, whose husband, Mr. Terry, a solicitor, did tend the litigation of his wife's aunt, that is, Miss Jane Liles, over her houses, without charging anything, just In keeping with the request of the old lady. Upon such facts, Lord Esher, M. R., feels bound by the authorities to hold that there is a rule in equity, by which a legal presumption of undue influence by the solicitor, in a case of this type, is incapable of being met or rebutted by evidence, but not without lamenting:
'I own that I think It unfortunate that such a rule should have been laid down, because in particular instances it may work great injustice; and I do not think that a hard and fast rule which may work such injustice ought to be the rule of law in the matter.' Lopes, L. J. and Kay, JJ., two other members of the Court of Appeal, however, differ from the Master of the Roll's comment on the rule of equity on the subject. Lopes, L. J. says in reply:
'I cannot consider it an unfortunate rule. It appears to me to be a hard and fast rule which is founded on public policy. In exceptional cases, it may possibly work hardship: but in the generality oi cases it is highly beneficial, and I should regret to see it altered.' Kay, L. J., answers: 'I cannot conceive a wiser rule than this, or one more calculated in most cases to ensure the observance of justice and equity in such a confidential relation.'
74. Such then is the class of case, upon which the appellants rely. Not that all the eleven cases I have reviewed above, (paragraphs 70 and 73), the appellants cite on the point I am on now. They, cite, amongst them, only three: (1877) 8 Ch D 638, (1882) 8 QBD 587 and (1895) 2 QB 679=78 LT 428, all reviewed in the preceding paragraph. Now, the law laid down in this class of case for over one century from (1757) 97 ER 22= Wilm 58 to 1895-2 QB 679=73 LT 428 is: an attorney shall not take a gift from his client when the relation of attorney and client, or any influence from such relationship, subsists. If this is the last word on the subject, the contention, of the appellants that Muktalal's gift to Ashalata, wife of Manmatha, his pleader, fails on the rule of public policy -- a hard and fast rule for safety of the society -- must prevail. It will however be my endeavour to show that such view is not, and cannot be regarded, as the last word on the law, principally for three reasons, First, an opposite view is clearly discernible even at or about the time the strict rule that an attorney shall not take is being enunciated and adhered to. Second, the strict rule has been departed from in later cases, leaving to the Courts exercise of a certain freedom in their decisions as to where the rule should be applied. Third, none of the leading statutory provisions, referred to in paragraph 69 ante, or, for the matter of that any statutory provisions, prescribe that so soon as a client makes a gift to his solicitor, such gift goes down as void, the presumption of undue influence of the solicitor over his client being an irrebuttable presumption. Indeed, Section 111 of the Evidence Act provides for just the opposite. The presumption against good faith is liable to be rebutted, the onus being on the party who is in a position of active confidence.
75. That an opposite view has been taken becomes manifest from the cases listed below,
1. Hylton v. Hylton, (1754) 2 Ves Sen 647. Here the gift of an annuity by a nephew, soon after coming of age, to his uncle and guardian, who was acting too as executor and trustee in wills, by which the nephew had considerable gifts or provisions left to him, was set aside on principles of public utility. But the facts were heavily against the uncle, who haggled for the annuity at the time of accounting for and delivering up the estate to his nephew, to whom what was said really comes to this: 'I will not deliver up the estate you are entitled to, and account, unless you grant me this. So, the rule of the Court as to guardians -- an extremely strict rule -- based on the principle of humanity, great utility, as also necessity: 'that it is a debt of humanity that one man owes to another.' was in flagrant breach. And the nephew was totally relieved against the grant. Still Lord Hardwicke, L. C., whose decision it is, did not make it a hard and fast rule. For, his Lordship observed:
'Undoubtedly, if after the ward or cestui que trust comes of age, and after actually put into possession of the estate, he thinks fit, when sui juris and at liberty to grant that or any other reasonable grant by way of reward for care and trouble, when done with eyes open, the Court could never set that aside.' 2. Hatch v. Hatch, (1804) 9 Ves 292. Mrs. Hatch, when a girl of 4, lost her father, Giles Hatch was her sister's husband. With him and under his protection, she lived after the death of her father. In October 1779 she came of age. And on January 20, 1780, she executed a conveyance, in consideration, as it was expressed, of her great friendship, kindness and regard for him, the care taken of by him, love and affection. Thomas Hatch, an attorney and a brother of Giles, prepared the deed. The accounting between her and Giles was settled too in 1780. In 1784, the girl, come of age in October 1779, and quite a grown-up then, married Thoms Hatch and became Mrs. Hatch. In 1800, after the death of Giles, she filed the Bill, charging fraud, pleading that she was very deaf, and praying for being relieved against the conveyance, What Lord Eldon, L. C. said, on such facts, appears to be worth quoting over and over again, if I may say so, with the greatest respect:
'There may not be a more moral act, one that would do more credit to a young man beginning the world, or afford 9 better omen for the future, than if, a Trustee having done his duty, the cestui que trust, taking it into his fair, serious and well-informed consideration, were to do an act of bounty like this. But the Court cannot permit it; except quite satisfied, that the act is of that nature, for the reason often given; and recollecting, that in discussing, whether it is an act of rational consideration, an act of pure volition, uninfluenced, that inquiry is so easily baffled in a court of justice, that instead of the spontaneous act of a friend, uninfluenced, it may be the impulse of a mind, misled by undue kindness, or forced by oppression; the difficulty of getting property out of the hands of the Guardian or Trustee thus Increased; and therefore, if the Court does not watch these transactions with a jealousy almost Invincible, in the great majority of cases it will lend its assistance to fraud; where the connection is not dissolved, the account not settled, everything remaining pressing upon the mind of the party under the care of the Guardian or Trustee.' Again,
'This case proves the wisdom of the Court in saying, it is almost impossible in the course of the connection of Guardian and Ward, Attorney and Client, Trustee and Cestui Que Trust, that a transaction shall stand, purporting to be bounty, for the execution of antecedent duty.' What does, therefore, (1804) 9 Ves 292 show? An irrebuttable presumption, or a rebuttable presumption, though it is a very, very uphill task to rebut it? The words 'almost impossible' appear to be deserving of notice; no less the call by the Lord Chancellor upon the Courts to watch such transactions with jealousy almost invincible. If in spite of such watch, the transaction stands, what is 'almost impossible' becomes possible. Therefore, the rule laid down is not an irrebuttable presumption, but a rebuttable one, no matter how hard the task is to rebut it. That this is so appears to be clear from the next two cases I review below, but not in order of date.
3. Wright v. Carter, (1903) 1 Ch 27=72 LJ Ch 138=51 WR 196. It is hardly necessary to narrate all the facts which run to some length. Suffice it to say that Col. Wright, the senior partner in a banking business, down to 1898, was badly involved in a deal with Capital and Counties Bank for 1,10.000. With a view to preventing the whole of his property being swept awav by the bank, on May 15, 1900, March 14, 1901, and July 13, 1901, of a specific share (2/20th) out of trust funds and of specified sums of money, he made, inter alia, a gift to, and settled on. Carter who had acted as his solicitor and confidential adviser from 1899 and continued to act so till August 1901. Naturally, the question of a gift by client (Col. Wright) to solicitor (Carter) bulked so large in the action by Col. Wright to have all the instruments -- two of 1900 and two of 1901 -- set aside, on the ground of their having conferred benefits upon Carter, his solicitor, and having been executed during the existence of relation of solicitor and client. Naturally, (1804) 9 Ves 292 also came up for consideration. Vaughan Williams, L. J., read the very words of Lord Eldon I have reproduced in the first excerpt above, and said this, amongst other things, of the rule laid down by the Lord Chancellor in that case:
'The principle that I understand Lord Eldon to be affirming is this -- that whenever you have these fiduciary relations (and in the present case we have to deal with the particular fiduciary relation of solicitor and client), the moment the relation is established, there arises a presumption to influence which presumption will continue as long as the relation, such as that of solicitor and client, continues, or at all events until it can be clearly inferred that the influence had come to an end. 'Now I am not saying that the presumption of influence affecting or avoiding the gift is an irrebuttable presumption: I do not think that the cases go that length, and I do not think that Lord Eldon meant so to lay down'. To my mind, all that he means is that so long as this fiduciary relation continues, so long will it be very difficult to support the gift, and so long will the Court refuse to go into nice discussions as to whether the gift -- taking the case of a gift by a client to his solicitor -- was a gift which was advantageous to the client or whether it was not. I do not mean to say that, if the gift to the solicitor Is manifestly one which a prudent man would not have given supposing the relation of solicitor and client to have determined in hac re, such a fact may not be taken into consideration as showing that, notwithstanding the determination of the actual relation, or (as the case may be) the non-employment of the solicitor in the particular matter, it is obvious that the influence of the solicitor had not ceased, but, on the contrary, had still continued'.
So, the presumption of a solicitor's influence over his client, making a gift to his solicitor, is not a presumption incapable of being met or rebutted. That is so clear from the extract above, made clearer still by the portion I have underlined (herein ' ') for italics.
The following from the judgment of Cozens-Hardy. L. J., another member of the Court of Appeal, in 1903-1 Ch 27 points to the same conclusion;
'Assuming, as I do, that the presumption of undue influence in the ease of a gift by a client to his solicitor during the continuance of the relationship is not irrebuttable, I hold that something beyond what was done here Is essential to sustain such a gift.'
No doubt, it is an assumption; but it is an assumption based upon the exposition of the law made by Vaughan Williams, L. J.
There is a little more yet to be looked into in 1903-1 Ch 27=72 LJ Ch 138=51 WR 196. Having laid down that the presumption of undue influence in the case of a gift by a client to his solicitor is not irrebuttable, having observed that even Lord Eldon did not mean so to lay down, and having held that an improvident gift by a client to his solicitor would show continuance of the solicitor's influence, even though the relation of solicitor and client might have been determined in hac re, Vaughan Williams, L. J., pointed to still another consideration which would make the presumption a rebuttable one all the more:
'So, on the other hand, the fact that the gift is a very trifling gift, or a gift made by a man with so ample a fortune that it must have been trifling to him, is a matter which might fairly be taken into consideration in considering whether the influence continues.'
Apply this test to the facts of the case on hand. Even after the impugned gift, Muktalal remained seized of cash and other assets worth Rs. 60,000, if not more, as also of the right to live in any part of the house gifted away, as the house stood then or was to be built upon later, in addition to free food and other amenities: paragraph 61 ante. Considering the type Muktalal was, a gift as this could not have been much to him.
The contention on behalf of the appellants is that a trifling always means a trifling only: something of a small value. In support thereof, reference is made to what Kay, L. J., says in (1895) 2 QB 679 =73 LT 428 (supra). And what his Lordship says may be put thus:
Setting aside a deed obtained by the keeper of a mad-house from a boarder and ex-patient, in Wright v. Proud, (1806) 13 Ves 136, Lord Erskine lays down the rule:
'So, independently of all fraud, an attorney shall not take a gift from hia client, while the relation subsists, though the transaction may be, not only free from fraud, but the most moral in its nature.'
In (1804) 9 Ves 292 however, Lord Eldon says, it is almost impossible that a like transaction shall stand, as just noticed. Pointing this out, Kay, L. J., observes:
'What was said by Turner, L. J., in Rhodes v. Bate, (1866) 1 Ch A 252, seems to explain the slight difference between the two statements. He there says that in the case of merely trifling gifts the Court would not interfere to set them aside upon the mere fact of a confidential relation and the absence of proof of competent and independent advice. But with regard to all other gifts he lays it down as a strict rule that persons standing in a confidential relation towards other 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 benefits had been conferred had competent and independent advice in conferring them.'
Certainly, an approach as this supports the appellants. The house gifted by Muktalal to Ashalata cannot be called a merely trifling gift: a gift of a very small value. But the law has not remained static since 1866 when Turner, L. J., (whom Kay, L. J., quotes) rendered his judgment. Thirty-seven years later that is, in 1903, Vaughan Williams, L. J., was speaking in 1903-1 Ch 27=72 LJ Ch 138=51 WR 196 of a gift made by a man with so ample a fortune that it must have been trifling to him. Muktalal might not have been a man with ample a fortune. But what he gave was much less than what he had. And what he had, after the gift, was much more than what he could need. So the gift was near-trifle to him. More, Vaughan Williams, L. J., put the word 'trifle' in its proper place, if I may say so. A relative term, it plainly means, what is a trifling to one, who is a millionaire several times over, may be quite a big thing to another of small means. Had Muktalal given his all, leaving nothing for him, the existence of Manmatha's influence over him would have been patent, other things being there. Since that is not so, since what was given was much less than what he held, since what he held was more than what he could need, Manmatha's influence does not look so obvious, made indeed still less obvious, nay nonexistent, by the very broad considerations, as distinguished from 'nice discussions', recorded in the foregoing lines and summarised in paragraph 63.
4. Daing Soharah Binte Daing Todaleh v. Chabak Binte Lasaliho, AIR 1927 PC 148. In 1921, the Bugis ladies, Mahomedans and of advanced ages (over 70), whose suit it was to set aside the gift in favour of their nephew and agent, Hadji Mohamed, and his sister Etendir Binte Laplamni, landed in Singapore (from Borneo where they lived.) en route to Mecca on pilgrimage, and made the impugned gift, on September 19 of that year, of their Singapore property. The case of the first kind, in the statement of claim, resting on misrepresentation by Hadji Mohamed who, it was said, represented to the ladies that the document was a will, though it was an assignment, was negatived by the trial Judge and the Court of Appeal too. The case of the second kind, although not distinctly set out in the statement of claim: that the burden was on the assignee, standing in a fiduciary position, of giving full details of the circumstances under which the assignment to him was made: remained. Naturally, there was deficiency in that sort of evidence which would have been tendered, if the case had proceeded to trial on that footing, One thing more about the facts; the very character of the assignment of September 19, 1921, revealed the following;
1. In consideration of (i) natural love and affection (ii) Mohamed and Etendir having maintained the ladies for some-time past and (iii) their agreeing to maintain them for the future during their respective lives, two undivided thirds of the Singapore property were for Hadji Mohamed and one undivided third was for Etendir.
2. Followed a covenant for maintenance, in the future as in the past, of the assignors by the assignees -- (which has only to be compared with the agreement or annuity bond for the maintenance of Muktalal by Ashalata).
3. The document in English was explained by Mohamed to the assignors, ignorant of English., Here the document in Bengali was read by the scribe and Muktalal himself: Muktalal who knew Bengali.
Upon these facts, as also on the consideration that no proceedings were taken to question the gift for three years, the instrument of assignment was not set aside. Viscount Haldane, delivering the opinion of the Board, summed up the position as follows:
The relationship of the parties, the desire, naturally to be inferred, of the ladies to make a disposition of their affairs before going away on a long journey to Mecca, and the opportunity offered by the flying visit to Singapore, where the property was, but where they were not resident, -- all render it probable that the transaction had been considered and represented the deliberately conceived intention of the assignors.
Trying to emulate this, I have summarised the telling features of the case on hand in paragraph 63 ante.
But the propositions of law laid down by Viscount Haldane, demonstrating inter alia that the presumption of undue influence by an attorney over his client is not an irrebuttable one, have yet to be stated. They are-
A. The principle is 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 relief given by a Court of equity is a secondary consequence of this principle.
B. 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. 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 completely free will.
Apply these two propositions to what I have found in the case in hand and summed up (paragraph 63), The findings I have come to, supported by the reasons I have given, pass, in my judgment, the test these two propositions lay down. But, it is said, the Sohara Binte case, AIR 1927 PC 148 deals with a gift by an aunt to her nephew, whereas the gift in hand is by a client to his pleader. That indeed is true. So what? The relief, where available, stands upon a general principle, applying to all the variety of relations, in which one person may exercise dominion over another. The relation of solicitor-client apart, the cases in the books reveal, amongst others, that of footman and master (1757) 97 ER 22= Wilm 58, of ward and guardian (1754) 2 Ves Sen 547; (1804) 9 Ves 292, of child and parent, Wright v. Vanderplank, (1856) 8 D. M. & G. 133, Lancashire Loans Ltd. v. Black, (1934) 1 KB 380, of physician and patient, (1882) 8 QBD 587: Dixon v Olmius, (1787) 1 Cox Eq Cas 414, of keeper of a mad-house and a boarder who is an ex-patient: (1806) 13 Ves 136, of principal and agent (1866) 1 Ch A 252, of even a tradesman who officiously interfered Proof v. Hines, Cas Temp Talb 111 = 25 ER 690, of brother and brother belonging to the same religious Order Morley v. Loughnan, (1893) 1 Ch 736= 62 LJ Ch 515, of priest and laity (1807) 9 RR 276=14 Ves 273, of a spiritual medium and one under his charm Lyon v. Home, (1868) 6 Eq 655, of one to whom, another trusts her matters spiritual, and that another, who reposes her trust so Allcard v. Skinner, (1888) 36 Ch D 145, of husband and wife Tungabai v. Yeshvant Dinkar Jog , etc.. etc. This is why Viscount Haldane says, in Sohara Binte case, AIR 1927 PC 148:
'The Courts have refused to enumerate exhaustively the cases in which the presumption of undue influence will prima facie be made. Religious influence is included, and so are many other classes of influence in which the donee may from his position be presumed to be likely to have exercised special influence over the mind of the donor.'
So, what does it matter that the Sohara Binte case, AIR 1927 PC 148 or the Inche Norlah case. 1929 AC 127=AIR 1929 PC 3=1929 Mad WN 105 deals with the case of a gift by an aunt to a nephew? The principle is the same, though the application of the principle will vary according as the position of confidentiality is strong or weak. To quote again Viscount Haldane:
'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. This appears to their Lordships to be the outcome of numerous authorities which they have examined.'
Thus, the law on the relation of solicitor and client is here too, though it is a case resting on that of aunt and nephew. And such law, as laid down by the Privy Council in 1927, after examination of 'numerous authorities', is that the presumption of influence of a solicitor over his client is not an irrebuttable one. But, in the very nature of the relationship. It is very difficult to rebut the presumption. That is not denied. What is denied is the extreme proposition that you cannot rebut such presumption at all. What is asserted and found on facts here is: so difficult a task of rebutting the presumption and establishing the gift, spontaneously and willingly by the client Muktalal to his pleader Manmatha, treating the gift to Ashalata as such, has been well performed.
Such being the law laid down by the Judicial Committee, so late in 1927, about the presumption of a solicitor's influence over his client being a rebuttable one, reference to other cases may as well be eliminated. Still here are a few amongst them:
5. Hunter v. Atkins, (1834) 3 M & K 113. Though in the nature of an obiter dictum, because the relation of solicitor and client did not exist on facts found, the following from Lord Brougham's judgment, 'a great deal of observation' in which 'has been often commented upon and often criticised', as Bacon, V. C, puts it in (1877) 6 Ch D 638, brings out the unreasonableness, if not the absurdity, of the extreme proposition that an attorney shall not take a gift from his client in any circumstance:
'A client, for example, may naturally entertain a kindly feeling towards a solicitor by whose assistance he has been benefited; and he may fairly and wisely desire to benefit him by a gift. No law that is tolerable among civilised men --who have the benefits of civility without the evils of excessive refinement and overdone subtlety -- can ever forbid such a transaction, provided the client be of mature age and of sound mind and there be nothing to show that deception was practised, or that the solicitor availed himself of his situation to withhold any knowledge, or to exercise any influence hurtful to others and advantageous to himself.'
The findings I have recorded above be recalled. Muktalal, the client, was of mature age and of sound mind. Nothing like any deception was practised on him ever. Nor did Manmatha, the pleader avail himself of his situation to withhold any knowledge. Tending three ample ejectment suits concerning rooms, bearing a paltry rent, and arrears writ large, what possible knowledge could he acquire, and what manner of influence, hurtful to others or advantageous to himself, could he exercise? None whatever. Not that he was out to regain, by litigation, a property his client Muktalal had lost; and in the course of his investigation as a lawyer, he came by valuable information of which Muktalal was ignorant. First and last, what the passage quoted stands for is a rebuttable presumption, not an irrebuttable one.
6. (1866) 1 Ch 252, hardly shows the existence of a hard and fast rule about the presumption of undue influence being incapable of beinfi met or rebutted. It shows instead that, the donor having independent advice, the presumption is rebutted, and the transaction is regarded as fair and straightforward,
7. (1856) 8 D M & G 133. Here the daughter elected to abide by the gift to her parent -- a gift which, she knew, was impeachable. No impeachment was allowed after her death, in an action to set aside the gift, ten years after its execution. To prove that the daughter had elected so, what was needed was no positive act showing as much, but a fixed, deliberate and unbiased determination on her part that the transaction should stand. So, here is one more instance of the presumption being a rebuttable one.
8. (1888) 36 Ch D 145. If 10 years' delay in the preceding case was one of the two grounds which led to the inference that the donor, the daughter, abode by the gift, here 6 years' delay (1879, when the plaintiff left the sisterhood, to 1885, when she issued the writ in the action) debarred her from obtaining the relief she would otherwise have been entitled to. In the Soharah Binte case, AIR 1927 PC 148, the delay was for three years. Therefore, delay has a part to play in determining whether or no there has been an election on the part of the donor to confirm the gift in fine, it becomes a case of rebuttable presumption capable of being rebutted by delay in appropriate cases. In the case in hand, be it stated at the risk of repetition, Muktalal elected to abide by the gift dated 7th February, 1951, by having recorded on 17th May, 1951 in Ashalata's application for mutation of her name in the books of the municipality that he had no objection thereto: (Paragraphs 63 and 73). Delay of some 3 months and 10 days no doubt. But, upon the whole of the evidence, it very much looks that had Muktalal not met the unnatural death he most unfortunately did, the delay would have been far greater.
9. In re Coomber; Coomber v. Coomber, (1911) 1 Ch 723, Cozen-Hardy, M. R. cautious here not to set up a presumption against the validity of the gift in every fiduciary relation and every relation of confidence -- a course which will be not according to authority, but distinctly contrary to principle. In saying so, Ms Lordship observes:
'There are confidential relations in which there is a presumption of undue influence. Take the case of solicitor and client. ..... Another instance is where a young person, immediately after attaining twenty-one, makes a gift to a parent or a person standing in loco parentis. When a gift is made under such circumstances, there is a presumption of undue influence which requires something to rebut it. ..... What is thus laid down is that such presumption is rebuttable.
10. Inche Noriah case, 1929 AC 127= AIR 1929 PC 3=1929 Mad WN 105 (paragraph 62). Lord Hailsham, L. C., approves the judgment of Cotton, L. J., in (1888) 36 Ch D 145 in making a dichotomy of gifts according to the decisions of the Court of Chancery; (i) gifts which are the result of influence expressly used by the donee for the purpose, and (ii) gifts 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 presumption that the donee had influence over the donor. The first class of gifts goes down on the principle that no one shall be allowed to retain any benefit arising from his own fraud or wrongful act. For the second class, the principle to remember is: 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 therefrom being abused. Not that the Court sets aside such voluntary gifts invariably. No, it does not; the Court does set aside the voluntary gift, unless it is Droved 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: just what has been held above (paragraph 63) about Muktalal's impugned gift. Therefore, nothing like any irrebuttable presumption is to be found in the law laid down by this Privy Council decision.
76. What goes In the preceding paragraph demonstrates that the taking of a gift by a solicitor from his client does not give rise to an irrebuttable presumption of undue influence and that the Court has the complete freedom to find, upon all matters before it, rebuttal of such influence: Just the first two reasons (paragraph 74) which lead me to hold that the rule about an irrebuttable presumption is not so inflexible as the appellants take it to be. And when I come to the third reason: absence of any statutory provisions ordaining it so (paragraph 74), as I do now, the stance of the appellants, making the presumption of undue influence irrebuttable, sets weaker still.
77. To Section 111 of the Evidence Act first. In terms thereof, Manmatha, the pleader, does stand in a fiduciary relation to Muktalal, his client, whoso interests he is in duty bound to protect Therefore, the burden of providing the good faith of the transaction: the gift dated 7th February, 1951: is on him. That is Section 111, and no more. And this burden has been discharged, for reason stated in the foregoing lines and summarised in paragraph 63.
78. Now, to Section 16 of the Contract Act, 10 of 1872. Sub-section (1) lays down the principle in general terms. The relations subsisting between the parties are such that is one in a position to dominate the will of the other? More, does the one in a dominating position use such position to obtain an unfair advantage over the other? If both these questions are answered in the affirmative, undue influence is there plain to be seen. Sub-section (2) is a 'deeming' provision, providing for a presumption when one shall be taken to be in a position to dominate the will of another, e.g., when one stands in a fiduciary relation to the other, as Manmatha does in relation to Muktalal. Sub-section (3) lays down the following propositions, one following the other in strict order, any change in which (in such order) is almost sure to make for an error :
One, the relations between the parties to each other must be such that one is in a position to dominate the will of the other.
Two, once it is so substantiated: that one is in a position to dominate the will of the other, the second stage has been reached, -- namely, the issue whether the transaction has been induced by undue influence or not.
Three, upon the determination of this issue, a third point emerges, which is that of the onus probandi. Transaction unconscionable? Then, the burden of proving that the transaction was not induced by undue influence is to He upon the person who was in a position to dominate the will of the other.
In analysing Section 16 so, I am doing no more than paraphrasing what has been laid down by the Supreme Court in Ladli Farshad v. Karnal Distillery Co. Ltd. : [1964]1SCR270 , and by the Privy Council in Raghunath Prasad v. Sarju Prasad, 51 Ind App 101=(AIR 1924 PC 60). In the last mentioned case, the terms of the mortgage were high, so much so that the original debt of Rs. 10,000 had swollen to Rs. 1,12,885, by the time the High Court entered its decree, leading to the error of the unconscionableness of the bargain having been the first thing considered, instead of having been the last thing in the order given above.
79. Translate these three propositions, to the facts of this case, in the very order in which they have been enunciated. Upon evidence, can it be said that Proposition One is well met here? The relations between Manmatha and his client Muktalal having been what they were, can it be said that Manmatha was in a position to dominate the will of Muktalal? Even it can be so held only as a matter of law, in the realm of facts there may well be cases where domination is the other way about. Be that as it may, the position here is this; Charged to tend the plainest of plain ejectment suits, with paltry rents, made so much the easier by the tenants suffering the decrees to be entered against them, by consent, what amount of influence could Manmatha exercise over Muktalal, the shrewd man of business, and a miser, on top of that as I size him to be, upon the whole of the evidence? Not much. To the Pisani case, (1874) 5 PC 516 again (paragraph 72). The amount of Pisani's influence upon Miss Porro was estimated in the light of all that evidence disclosed; npt much influence had been acquired either. That is what is found here too. Coming to Proposition Two, if 1 am right in the findings I have come to, and summarised in paragraph 63, it becomes impossible to say that the transaction of 7th February, 1951, has been induced by undue influence. It represents the pure, voluntary and well-understood act of Muktalal's mind. Proposition Three remains. But the manner in which the two preceding propositions have been found furnished the answer to this one too. In the spontaneous gift by Muktalal, not ridding himself of all he had, but keeping plenty for him, it is difficult to see anything which is not conformable to one's conscience, and, therefore, unconscionable. That apart, Manmatha has discharged the burden that the transaction was not induced by undue influence. Thus, there appears to be nothing in Section 16, or the principle thereof, which can stand between the respondents and the impugned gift.
80. By parity of reasoning, Section 89 of the Trusts Act 1882 cannot be reckoned against them. To Manmatha and Ashalata, the gifted house has undoubtedly been a windfall. But to say so is not to say that they have gained an advantage by exercise of undue influence. In view of facts found, no exercise of undue influence is there and S. 89 eliminates itself.
81. So does Section 88, which consists of two parts. Say -- and this may be said, -- Manmatha, the pleader, is bound in a fiduciary character to protect the interests of Muktalal, his client. Say also, -- and this may be said too, -- he has had a windfall in getting the house as a gift. But can it be said that he gains for himself the pecuniary advantage in the gift of the house, by availing himself of such fiduciary character? That cannot be said, the gift having been what it is: a voluntary, spontaneous and deliberately conceived intention of Muktalal, nothing to say of the fact that no dealings with a third party are seen here, And the very words 'by availing himself of his character' seem to imply dealings exactly with such a one. Illustrations (c), (d) and (e) to Section 88 illustrate just that.
82. The second part of Section 88 does not reach either, the facts of the present case. The circumstances, in which the interests of Manmatha are, or may be, adverse to those of Muktalal, are missed here. Before, or even at the time of, the gift, -- and that is the time that counts, -- the interests in the house gifted are the interests of Muktalal alone. It is so unlike the interests of A, an executor to quote from illustration (a), for example, to Section 88, who buys at an undervalue from B, a legatee, his claim under the will, B being ignorant of the value of the bequest. Sure enough, the interests of A are adverse to those of B at the time, and before such time too, when A buys at an undervalue from B. Say this of Manmatha and Muktalal? To say so is to say the unsayable. Illustrations (b), (g) and (h) to Section 88 appear to indicate as much.
83. The authorities cited do not show anything different either. The Privy Council case of Nagendrabala Dassi v. Dinanath Mahish, decided on 29-11-1923 and come into the reports in 51 Ind App 24=29 Cal WN 491^ILR 51 Cal 299 = (AIR 1924 PC 34), reveals, amongst other things, purchase, by Nagendrabala, the wife of the pleader who had appeared and acted for the mortgagor-defendants, of the mortgage-decree, not fully executed yet, for Rs. 11,500, execution of the decree, so purchased, by Nagendrabala, and ultimately the purchase by her of some of the properties in Court-sale, after having obtained leave to bid, but without telling the Court that she was the benamdar of the pleader. That led to a suit by some of the judgment-debtors for a declaration that such purchase by the pleader, concealing that he was the real purchaser, was bad. The Subordinate Judge directed reconveyance of the unexecuted decree by Nagendrabala to the plaintiffs on payment of Rs. 13,750. The High Court, on appeal, confirmed that and directed reconveyance too of the properties purchased by her at the sale in execution of the decree. An appeal was taken to the Privy Council. The argument on behalf of the appellants, Nagendrabala and her husband, the pleader, was;
We admit, we are bound to surrender the unexecuted decree at a price we paid for it. But at the time of the sales in execution the pleader appellant had long ceased to be a pleader for the respondents who were represented by other pleaders. It is not said that any knowledge the pleader appellant had obtained while he acted as pleader was conducive in any way to his buying the properties through his wife when they were on sale in execution of the decree. Ergo, the reconveyance of such properties purchased by Nagendrabala at the sale in execution of the decree, as directed by the High Court, may go out of the decree.
Lord Dunedin, delivering the judgment of the Board, repelled it;
'This argument is not good. Had the purchase of the properties been open and above board by the pleader appellant, the result might have been otherwise.'
In other words, the argument might have been good. Herein, therefore, lies the key to the decision. Be it Section 88 or the ordinary equitable conditions which lie behind it -- Section 88 did not then apply to this part of India -- a person in confidential position shall not make use of that position to obtain an advantage over the person with whom he is in confidentiality. Now, there is no more certain way of taking advantage than the way of concealment. Nagendra-bala's husband, a quondam pleader for the mortgagors, concealed his identity twice, first in having purchased the unexecuted decree, and, secondly, in having allowed his wife to get leave to bid and thereafter to purchase. Nothing like this can be predicated of Manmatha. The gift to his wife, Ashalata, was open and above board. Law no doubt, regards such gift as a gift to Manmatha himself. That is another matter. Not that Manmatha did get the gift in the benami of his wife, as Nagendrabala's husband got the purchases in the benami of Nagendrabala. So, if anything, this Privy Council decision favours the respondents, the gift by Muktalal to Ashalata, his second mother, having been open, with no concealment anywhere.
84. In Amrita Lal v. Pratap Chandra, : AIR1931Cal144 , a pleader, himself a plaintiff (No. 4), qua lessee from Jagatrani, plaintiff No. 1, acted as a pleader for the Baishya defendants, the purchasers from Jagatrani's husband's brother, defendant No. 1. The allegation was that he used information he had derived in the course of such professional capacity, in having secured the lease from Jagatrani. It was held that, a pleader though he was, as alleged, of the Baishya defendants, no advantage he had obtained over them, his clients, by having used his confidential position, thereby precluding the application of Section 88. More, because of no such advantage having been taken, and of the pleader having never encouraged the Baishyas to go in for the purchase, there having been no question at any time of any negotiation on their behalf with Jagatrani, the case, it was held, would fall outside the dictum of the House of Lords in Carter v. Palmer, (1841) C & F 657, where the facts were:
'Carter acted not merely as counsel for Palmer, he was his legal adviser too. Indeed, Palmer was acting under the advice of Carter. Necessarily, Carter had full information of the nature of securities held by one Mackmurdo, and also the means Palmer could command for discharging such securities. What is much more, he himself had been engaged for Palmer in the negotiation for the compounding of these claims. Thus, fully aware that the claims might actually be bought up for much less than their nominal amount and their actual worth, he himself purchased them from Mackmurdo for a sum little more than one-third of their actual value. So he could do, only because of the information he had acquired as agent or counsel for Palmer.'
Upon such facts, it is plain to be seen -- and so it was held -- that Carter had been incapacitated, by the very character of his employment, or, to put it, in the words of Section 88, by availing himself of his character, from purchasing, for his own benefit, these securities upon his employer's property: such incapacity continuing at the time of his purchase. Consequently, his purchase was considered as a purchase for the benefit of his employee. Palmer,
85. This is Section 88 in action. Or, to put it in another way. Section 88 of the Trusts Act 1882, by its first part, does no more than embody the ratio of this case of 1841. No matter how it is put, Manmatha comes nowhere near. It has been stated why (paragraph 81),
86. Vatighton v. Noble, (1861) 30 Beav 34=54 ER 801, and Sri Sri Gopal Jew v. Baldco Narain Singh, (1947) 51 Cal WN 383, dealing with trustees and turning on their own facts, cannot be assimilated here. In the former, the trustee bargained with the beneficiary, and both of them agreed to divide the trust fund. But no manner of legerdemain or shuffling of the cards could give the trustee any interest in the fund, which was no more his than any stranger's, agreement or no agreement. The transaction could not, therefore, stand. In the latter, the trustees had deliberately entered into a settlement by which they gained a personal advantage. In the circumstances, it was said, the Court would not inquire further or look into the good faith of the transaction. This hardly bears any comparison with the voluntary and well-understood gift by Muktalal to Ashalata, or, for the matter of that, to Manmatha, of which it may truly be said, upon evidence: such a gift is there, not because of the relation of pleader and client, but independently of that; and if it is there because of such relation, it is there as the voluntary and deliberately conceived intention of the donor untrammelled by anything done by the donee as pleader.
87. Another case cited remains to be noticed: Kotaiah v. Venkata Subbaiah : AIR1962AP49 (FB), the ratio of which appears to be this: Section 66 of the Code of Civil Procedure bars a suit against the certified purchaser acting as the plaintiff's agent even prior to the purchase in dispute, in Court sale for benefit of the plaintiff. Section 82 of the Trusts Act keeping Section 66 of the Code unfettered, and Section 88 envisaging a fiduciary acquiring property for himself, and, therefore, not covering benami purchases. It has thus little to contribute here.
88. Having regard to the foregoing considerations, the conclusion reached is that Muktalal's gift stands. It stands, because the law now is not: a pleader shall not take a gift from his client, irrespective of facts and circumstances, which must necessarily vary in individual cases. It stands, because the law is: the presumption of undue influence in the case of a gift by a client to his plea-dor is not irrebuttable, such presumption here having been rebutted by the whole of the evidence. It stands, because none of the leading statutory provisions on the point, referred to above, stand between the gift and the donee.
80. So far then the gift by Muktalal to Ashalata has been treated as a gift which indeed it purports to be. Is it anything less or different? Does the annuity bond or deed of agreement, as it has been called, of February 7, 1951, make it less than, or different from, a gift? The evidence of Manmatha on this point bears inter alia:
'Rs. 40/- as mentioned In the deed as monthly maintenance of Muktalal was only for the purpose of stamp duty and not that we would have to pay him that amount monthly. The question of paying him in cash does not arise. Nothing was intended to pay Muktalal in cash, It is written in the document what we were to pay him in kind and not in cash.'
Strictly speaking Manmatha appears to be wrong, in so far as he says that nothing was to be paid to Muktalal in cash In terms of the deed of agreement, which clearly provides:
'If the first party (Ashalata) or any of her heirs and legal representatives be in any way negligent in the matter of the aforesaid maintenance, medical treatment, and pilgrimage, then in lieu thereof the first party remains bound to pay to the second party the sum of Rs. 40/- per month on account of the money value of such maintenance, medical treatment, and pilgrimage etc. .....'
But he appears to be plainly right when he says that the specified sum of Rs, 40/-was incorporated, as indeed it had to be, for the purposes of Stamp Duty. See the definition of bond in Section 2, Sub-section (5), of the Stamp Act, 2 of 1899, and Article 15 in Schedule 1 thereto. This fosters the contention on behalf of the appellants that what is provided for in the annuity bond is being disowned, with the result that the other transaction he-comes a hundred per cent gift. That it is. The whole of the evidence discussed above points to the same conclusion. Though both the transactions arc on one and the same day, one is not a consideration for the other. Muktalal is out to make a gift and does make the gift voluntarily, annuity bond or no annuity bond, understanding well enough that it is a gift. So he does as a token of gratitude to his second mother for all she has done, and has been doing for him. Ashalata, in turn, as a token of affection, provides, in writing, for Muktalal's amenities, most of which, indeed, she has been attending to all along. So that Muktalal may not be without a roof over his head, she provides for much more too, by writing: that Muktalal shall have the right to live in any part of the house so gifted to her. Upon evidence, it is impossible to say that Muktalal has been after a quid pro quo: 'If you maintain me and allow me to stay in the house I give you, I make the gift; otherwise not.' He has been after a deed of gift, without any consideration of the kind. The deed of agreement is not the cause of the gift which it only follows.
90. (1855) 3 Drewry 306, noticed in paragraph 70: 7, shows a real gift, though in the garb of a conveyance, the nominal consideration of 100 having been put in the deed to save Stamp Duty. Here also what is seen is a gift, the annuity bond notwithstanding.
91. Such being the conclusion, three things eliminate themselves. One is the annuity bond which can produce little effect on the fortunes of this litigation, The second is the legal consideration when and how far an agreement to pay maintenance, falling short of creating a charge on any specific property, creates a contractual obligation. The third -- a necessary corollary to the first two -- is no need whatever of competent independent advice, with the annuity bond gone, and only the simplest of a simple gift remaining (paragraphs 61-63).
92. It therefore becomes hardly necessary to examine the class of cases, cited at the bar, touching Section 40 of the Transfer of Property Act and the like, such as Mohini Debi v. Purna Sashi Gupta : AIR1932Cal451 , which decides inter alia that an agreement for maintenance, creating no charge within the meaning of Section 100 of the Transfer of Properly Act, attracts the second paragraph of Section 40 thereof, and makes the contractual obligation, so created, not enforceable against a purchaser without notice, Ali Hussain Mian v. Rajkumar Haldar : AIR1943Cal417 , where a Full Bench of this Court decides that a covenant for pre-emption of land, unrestricted in point of time, and expressed to be binding on parties, their heirs and successors, does not offend the rule against perpetuity, but creates the benefit of an obligation favouring the other party, though no interest in land, becoming thereby attached to the property, and, therefore, enforceable under Section 40 against two classes of transferees -- gratuitous and with notice,--and Sita Chandra Koley v. Mihilal Koley : AIR1955Cal21 , where my learned brother, sitting with S. K. Sen, J., extends the scope of Section 40, by applying its principle to the case of ar involuntary transfer under Section 26F of the Bengal Tenancy Act.
93. Equally barren will it be to deal at length with the topic of competent independent advice from a lawyer, the finding that has been come to in paragraphs 61-63 being what it is, on the basis of the Privy Council decision in the Inche Noriah case, 1929 AC 127=(AIR 1929 PC 3)=1929 Mad WN 105: that, the spontaneity of a simple gift, without any complication anywhere, having been proved by the whole of the evidence there is no reason for disregarding such evidence, merely because it does not include competent, independent advice of a lawyer, or, as obtains here, merely because the advice of the lawyer taker is an apology for advice. Where the deliberately conceived intention of the giver to make the gift is proved (as here) by facts and circumstances established by evidence, there can be no difference in principle between absence of advice from a lawyer and the taking of such advice which is found to be neither independent nor competent. Were it necessary for this Court to rely upon competent, independent and legal advice as an indispensable condition to the validity of the impugned transaction, the advice. Pleader Radhakrishna Patra gave to Muktalal, would fall far short of the minimal requirements, some of which may bo summed up and dealt with, in the context of facts here, as follows:
One, is the pleader, who advises, independent of the pleader who takes? Upon evidence, appearances are in favour of Radhakrishna, a junior lawyer, the one who advised, having been a nominee, if not a creature, of Manmatha, the one who took. So, 'independence' of 'independent legal 'advice' is gone.
Two, in order to earn competence to give proper advice, one who advises must be in possession of full facts -- all that is worth knowing in the matter. In 1903-1 Ch 27=72 LJ Ch 138=51 WR 196 (supra), Almy and Tarbet, Solicitors both, could not pass this test, as they knew next to nothing about the detail of the four deeds, two of 1900 and two of 1901, though, by the first two, gift and settlement by Wright to Carter, his solicitor, was patent. Here also Radhakrishna cannot pass the test, as, on his own admission, he cared not to ascertain all the circumstances, or any one of them, in absence of which it would be impossible for any honest adviser to advise in the matter.
Three, one who advises must give real advice, Radhakrishna lays himself open to the charge of scamping and gross failure of duty in having not advised to get some property -- why not the gifted one? -- charged for payment of Muktalal's maintenance. Merely asking Muktalal: Why such gift: is not to do duty expected of an advising lawyer of all persons,
94. Nothing more need be said on a matter which has ceased to be relevant. Upon all that goes before, the two points raised upon this appeal (paragraph 7) are found as under:
One, undue influence neither taints nor Infects the impugned deed of gift. And once the gift, the great document, stands, incapable of being impeached and unsuccessfully impeached too, the annuity bond, so small a document compared to the great one, which even the plaint wants to be struck down, if necessary, ceases to be of any consequence.
Two, the deed of gift to the first defendant Ashalata may well be regardedas a gift to her husband and Muktalal'spleader, the second defendant Manmatha,who, however, is not incapacitated, bySection 88 of the Trusts Act, from holding it, for his own benefit (paragraphs81-88).
95. In the result, the appeal fails and be dismissed, each party bearing its costs here and below, in all circumstances of the case.