Swarnalata Mitra vs Durga Prosad

Sen, J.—This is an appeal against the decision of Shri N. Banerji, third additional Subordinate Judge, Alipore, in Title Suit No. 13 of 1947 originally numbered as Title Suit No. 116 of 1943. The Plaintiffs instituted the suit on November 18, 1943, for ejectment of the Defendants from the premises at 1, Lake Place, Calcutta, and for recovery of arrears of rent due in respect thereof at Rs. 400 per month from April 18, 1942, to September 25, 1943 and of compensation for wrongful use and occupation of the premises at the same rate from September 26, 1943, to November 17, 1943. The Plaintiffs also claimed to recover Rs. 800 as damages for the value of glass panes alleged to have been removed by the Defendants from the window sashes of the building. According to the Plaintiffs, their predecessor Raghunath Prosad purchased the premises No. 1, Lake Place, from the owner, Defendant No. 2, Swarnalata Mitra, for the sum of Rs. 64,000 on April 18, 1942, by a registered sale deed. The sale deed was also executed by Defendant No. 1, Nishi Kanta Mitra, husband of Defendant No. 2, Swarnalata Mitra, as a confirming party. On the same date, namely, April 18, 1942, it was agreed between the parties that the Defendants would occupy the premises as tenants at the monthly rate of Rs. 400 for a period of three years from that date on condition that if they defaulted in paying three months'' rent the tenancy would terminate and the purchaser would be entitled to re-enter. Further, according to the Plaintiffs the sum of Rs. 1,200 was then deposited with the purchaser as advance rent to be deducted towards the rent for the last three months of the agreed term of the tenancy, namely, three years. The total claim for arrears of rent and damages for use and occupation after deducting the advance rent of Rs. 1,200 was laid at Rs. 6,400.

The Defendants contested the suit filing separate written statements. There was a common defence taken that Defendant No. 1, Nishi Kanta Mitra, who was a C.P.W.D. contractor in 1942, required money for some war contracts and he approached Raghunath Prosad, predecessor of the Plaintiffs, for a loan of Rs. 64,000 on mortgage of the premises at 1, Lake Place, but Raghunath Prosad was not willing to grant a loan on a mortgage because of the restrictions imposed on money-lenders by the Bengal Money Lenders Act of 1940 and suggested that he might give Rs. 64,000 provided the premises at 1, Lake Place, were sold to him outright; but he agreed to execute a deed of reconveyance provided the entire consideration together with interest at 7 1/2 per cent was repaid to him within a period of three years, the option of reconveyance not to be exercised before the expiry of the period of three months; that the Defendants agreed to the terms proposed and the transaction was thereupon effected and the sum of Rs. 1,200 was also paid to Raghunath Prosad as interest for the period of three months at 7 1/2 per cent but Raghunath Prosad declined to execute a written agreement for reconveyance and so the agreement for reconveyance remained an oral agreement. The Defendants denied that they agreed to remain in occupation of the premises as tenants at the monthly rent of Rs. 400 under Raghunath Prosad and altogether denied that there was a relationship as landlord and tenant. They contended that they were in occupation of the premises in part performance of the contract for reconveyance. They also challenged the notice of ejectment as invalid and insufficient. It may be mentioned here that notice to quit was issued on the Defendants on September 16, 1943, asking them to quit within a period of three days on the ground that the landlords were entitled to re-enter because the Defendants had defaulted for more than three months; and the usual 15 days'' notice to quit ending with the month of the tenancy was not given in this case.

Defendant No. 2, Swarnalata Mitra, took a further defence that she was never informed by her husband that there would be no written agreement for reconveyance and that if she had known this she would not have agreed to execute the sale deed at all and that the sale deed had been obtained by undue influence and was not binding on her.

The learned Subordinate Judge held that the notice to quit was invalid and insufficient because the Plaintiffs had failed to prove that there was a condition of the tenancy to the effect that the Plaintiffs would be entitled to re-enter if there was default for three months or more and that in the circumstances the tenancy must be regarded as an ordinary tenancy from month to month terminable by 15 days'' notice ending with the month of the tenancy. On this finding the learned Subordinate Judge dismissed the prayer for ejectment. The learned Subordinate Judge found that there had been a valid sale of the premises by Defendant No. 2 to Raghunath Prosad, predecessor-in-interest of the Plaintiffs, and that there was also a tenancy in respect of the premises between the parties at the monthly rent of Rs. 400 and that the Defendants were liable to pay such rent.

On the question of damages for removal of glass panes from window sashes, the learned Subordinate Judge held that no such claim was made out. Accordingly, the suit was decreed in part on contest for arrears of rent only.

Against that decision Defendant No. 2, Swarnalata Mitra, has preferred the present appeal.

The points urged in the appeal are, firstly, that the Plaintiffs have not obtained a good title as against the Appellant in respect of the premises; secondly, that there is no relationship of land-lord and tenant between the parties; thirdly, that in the absence of such relationship, the Plaintiffs are not entitled to a relief by way of mesne profits for use and occupation of the premises by the Defendants, they not having made such a prayer in the plaint; and fourthly, that the suit was not maintainable at the instance of the Plaintiffs who filed the suit and the Plaintiffs who continued the suit. These are accordingly the points for decision in this appeal.

As regards the first point, namely, whether the Plaintiffs have acquired title to the premises in suit as against the Defendant-Appellant, it should be noted that execution of the sale deed, ex. 1, is admitted by Defendant No. 2, Swarnalata Mitra and by Defendant No. 1, Nishi Kanta Mitra. The contention that the sale deed was intended to operate as a deed of mortgage cannot be accepted because even according to the case of the Defendants, Raghunath Prosad refused to advance loan on a mortgage because of the restrictions imposed by the Bengal Money Lenders Act, 1940, and insisted on a pure sale deed being effected. That the transaction was in effect a mortgage cannot, therefore, be maintained; and this follows also from the provisions of Section 58(c) of the Transfer of Property Act which provides that in order to constitute a mortgage by conditional sale "the condition for "reconveyance must be embodied in the document which effects "or purports to effect the sale". There is no doubt, therefore, that the document executed (ex. 1) operates as a deed of sale and prima facie transfers a good title to the predecessor of the Plaintiffs, namely, Raghunath Prosad, in the premises in suit. The argument of the learned advocate for the Appellant, however, is that the execution of the sale deed by the Appellant who is the wife of Defendant No. 1, Nishi Kanta Mitra, was obtained by undue influence on the part of her husband who was in urgent need of money for his own business and for that business prevailed upon his wife, the Appellant, to part with the premises without any benefit to herself. It is also urged that the Appellant is entitled to special protection as she is a pardanashin woman, even apart from the provisions of Sections 16 and 19A of the Indian Contract Act which deal with undue influence. In this connection the learned advocate for the Appellant has referred to some Privy Council rulings, e.g., Kali Buksh Singh v. Ram Gapal Singh (1913) L.R. 41 IndAp 23 : 18 C.W.N. 282 (P.C.); Farid-un-Nisa v. Mukhtar Ahmad (1925) L.R. 52 IndAp 342 : 30 C.W.N. 337 (P.C.), and other cases. The law on this point is well settled and was summarised by B.K. Mukherjea, J., in the case Karunamoyee Devi v. Sm. Mayamoyee Devi (1946) 82 C.L.J. 26, 51, it being held as follows:

It is the duty of the Court before upholding transactions with a pardanashin lady to satisfy itself that the lady had sufficient intelligence to understand the relevant and important matters, that she did understand them as they were explained to her, that nothing was concealed and that there was no undue influence or misrepresentation.

Independent legal advice is certainly not in itself essential. What is necessary to establish is that the import of the document was brought home to the mind of the guarantor and that she really understood and meant to make the transfer

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Where mere undue influence is alleged it is necessary to examine very closely all the circumstances of the case. The principles are always the same though the circumstances differ, and as a general rule the same questions arise. The questions enunciated are: (A) was the transaction a righteous transaction, i. e., was it a thing which a right-minded person might be expected to do? (B) was it an improvident act, that is to say, does it show so much improvidence as to suggest the idea that the lady was not mistress of herself and not in a state of mind to weigh what she was doing? (C) was it a matter requiring a legal adviser? (D) did the intention of making the gift originate with the donor?

In the present case the learned advocate for the Appellant has urged that the transaction was not a righteous transaction and was an improvident act because property worth over rupees one lac at the time was sold for Rs. 64,000 only. No satisfactory evidence as to the proper value of the premises at the time of the sale was however adduced in the case and the learned Subordinate Judge on such materials as there were came to the conclusion that the value of the premises which is a four-storeyed building on land measuring 3 cottas 11 chittaks odd would approximately be Rs. 80,000 at the time of the transaction, and as there was apprehension of bombing in the city at the time it could not be said that the sale for Rs. 64,000 was a sale at a very low or unfair price, and this would not justify the conclusion that the transaction was brought about by undue influence or fraud or misrepresentation; and we must agree with his conclusion on this point. The Appellant was examined at length on commission and her evidence makes it clear that she fully understood the nature of the transaction which she entered into. Thus, in reply to question No. 141 she spoke of taking money by executing the kabala as her husband was in great need of money at the time, trade in reply to question No. 180 she stated that she took money by executing the kabala and it was settled at that time that if she paid back the money within three years Raghunath Prosad would execute in her favour, that is, would execute a deed of reconveyance. In para. 6 of her written statement she also stated that she agreed to convey the property at the earnest request of her husband, Defendant No. 1. She, however, alleged that she never knew or understood that the term for reconveyance was to be oral only, and it has been urged by the learned advocate for the Appellant that she would never have agreed to execute the handled if she had known that the term for reconveyance was to be oral only. Nishi Kanta Mitra, Defendant No. 1, deposed in Court and stated that though at first Raghunath Prosad agreed to embody the terms for reconveyance in a separate document subsequently he declined to give any such agreement in writing and that Defendant No. 1 did not inform his wife about this. It has been urged from this that the execution of the sale deed by the Appellant was obtained by undue influence on the part of the husband. In the course of her deposition, however, Defendant No. 2 never expressly stated that if she had known that the agreement for reconveyance was to be oral only she would not have executed the kabala at all. She tried to say that the sale deed and the previous agreement for sale had never been read out to her and she did not know that she was executing a sale deed and not a mortgage deed. But this is contrary to her own evidence that she executed the kabala to help her husband who was in need of money, and there is a clear evidence that the terms were read over and explained to her before the execution of the deed. In this connection reference may be made to the evidence of D.W. 2, Animesh Chandra Ghosh, a pleader. He stated that he knew Defendant No. 1 and his wife and that they executed a sale deed in favour of Raghunath Prosad in his presence and that he read over and explained the document to Defendant No. 2 and also identified her and attested the sale deed.

He was cross-examined and he stated that he fully remembered that he clearly explained to Defendant No. 2 that the document was a deed of sale in respect of premises No. 1, Lake Place, in favour of Raghunath Prosad for a consideration of Rs. 64,000. He also stated that he explained also the purport of the letter (ex. 3) by which Defendants Nos. 1 and 2 put on record the fact that they would thenceforward occupy the premises as tenants at the monthly rent of Rs. 400 under Raghunath Prosad. There was also an agreement for sale (ex. 2, dated January 24, 1942) before the execution of the sale deed on April 18, 1942, and P.W. 1, Gostha Behari Dhar, who was a solicitor acting for Raghunath Prosad, stated that the agreement for sale (ex. 2) was read over to Defendant No. 2 by her son Debi Prosad Mitra in his presence. Debi Prosad Mitra had then passed the M.A. examination and was reading for the Law Degree. Though Debi Prosad has not been produced as a witness, there is no reason to think that he did not fully explain the terms of the document to his mother. Further, it appears from the evidence of P.W. 1 that he insisted that there should be an attorney for the Defendants for the purpose of completing this transaction of sale of the premises and that B.K. Ghose was accordingly appointed as an attorney for the Defendants. This B.K. Ghose has also not been examined as a witness, but the fact that an attorney was thus appointed for the Defendants also would go to show that Defendant No. 2 had obtained legal advice also before she executed the document. In the circumstances, it cannot be held that Defendant No. 2 would not have executed the sale deed if she had known that there would be no written agreement for reconveyance. Thus in view of the facts of this particular case, even taking into consideration the special protection which the law gives to pardanashin women, it must be held that the sale deed (ex. 1) is binding on the Defendants including Defendant No. 2, Appellant and that the same is not vitiated by undue influence.

The learned advocate for the Appellant has referred to the ruling in Tungabai Bhratar Purushottam Shamji Kumbhojkav v. Yeshvant Dinkar Jog (1944) L.R. 71 IndAp 184 : 49 C.W.N. 55 (P.C.), in support of the proposition that-

When a third party who benefits by a transaction has notice of the facts which raise the presumption of undue influence he is in no better position than the person who exercises the influence.

This proposition must be taken as well-established, but in the present case, in view of the facts of the case it cannot be said that there was any undue influence by the husband and in the circumstances the question does not arise whether Raghunath Prosad had notice of the facts raising the presumption that the document had been obtained by undue influence. Further, in the same case the Privy Council laid down that there was no presumption of influence in every case in which a wife conferred a benefit on her husband without consideration, though it had however to be considered whether the evidence raised the presumption of undue influence. In the present case the premises were subject to a previous mortgage which was cleared from the proceeds of the sale. It cannot, therefore, be said that the lady did not at all benefit from the transaction. Further there is reason to think that the premises belonged in reality to the husband and had been acquired and constructed with his money. Thus Raghunath Prasad''s solicitor sent a requisition on title in respect of the premises before the transaction of sale was completed. Exhibit 4 is the requisition with the replies thereto. It appears that in regard to question No. 3 "What is the source of "the purchase money of the vendor? The vendor''s attorney replied that the money was given to her by her husband and that vendor''s husband would join in the conveyance if necessary. Actually the vendor''s husband, Defendant No. 1, joined in the deed of sale as a confirming party. Nishi Kanta Mitra, Defendant No. 1, when cross-examined as to the source of the money for acquisition and construction of the premises in suit, stated that he all along carried on business in the name of his wife and that his wife erected the building in the disputed premises with the money she derived from the business. Nishi Kanta Mitra added that there was also income from other sources, but that the lady received income from other sources was not mentioned in the reply to question No. 3 of the requisition on title. Defendant No. 2 in the course of her examination spoke of having received some money from her father but she admitted that she had seven sisters and three brothers. She described her father as a zemindar at Pangaon in the district of Dacca, but clearly the zemindary was a zemindary in a small way. She could net say how much money she had actually received from her father. The evidence taken as a whole clearly leads to the conclusion that the premises had been constructed with money received from her husband. Apart from this fact, it has already been found that there is no reason to hold that the execution of the document was procured by undue influence on the part of her husband. The lady executed the document voluntarily fully understanding what she was doing. In the circumstances, it must be held that Raghunath Prosad and the Plaintiffs, as successors-in-interest of Raghunath Prosad, obtained a good title to the disputed premises by the sale deed (ex. 1) and that the sale deed was not vitiated by undue influence.

Next, there is the question as regards the relationship as landlord and tenant between the parties. In the agreement for sale (ex. 2) it is mentioned in para. 11 that the vendor shall if required by the purchaser, execute a lease in favour of the purchaser for three years jointly with her husband at a monthly rent of Rs. 400 inclusive of municipal taxes. A formal deed of lease was never executed, but on April 18, 1942, when the deed of sale was executed a letter was written by Defendant No. 1 and Defendant No. 2 addressed to Raghunath Prosad in which they embodied the terms of the lease alleged to have been already entered into. This letter is ex. 3. This letter gives the terms of the lease and was relied upon by the Plaintiffs to prove the terms of the lease. The learned advocate for the Appellant has urged that this letter effects a present demise of the premises and therefore amounts to a deed of lease, and not being executed by Raghunath Prosad, the lessor, and not being registered, is not, admissible into evidence. The learned Subordinate Judge agreed that the letter effected a present demise and was not admissible into evidence to prove the terms of the lease, but he held that the letter could be admitted into evidence for collateral purposes, e.g., for establishing relationship between the parties as landlord and tenant. The learned advocate for the Appellant has urged that even for collateral purposes such an unregistered document cannot be looked into. There is, however, authority for the proposition that such a document can be admitted for the collateral purpose of establishing relationship between the parties as landlord and tenant. Reference may be made in this connection to Suruchibala Roy Choudhurani v. Suruj Mia (1942) 46 C.W.N. 419. Moreover, it is possible to take the view that the letter (ex. 3) does not effect a present demise but records an admission of the terms of a lease already agreed on the basis of which a formal deed of lease was subsequently to be drawn up, although such a deed of lease was never drawn up. Such a letter was held to be admissible not as a deed of lease but as a document admitting the terms agreed upon, in the case of Chunilal Dutt v. Gopiram Bhotica (1926) 45 C.L.J. 32, which is a decision by a Division Bench. There is also a decision by a single Judge, Birendra Nath Roy Vs. Sm. Sukumari Bakshi, , where it was held that bhdrdpatra which was in effect a letter admitting the tenancy and the monthly rental was relevant as an admission. Accordingly, it must be held that the use made by the learned Subordinate Judge of the letter (ex. 3), was quite proper. If it is looked upon as a present demise, it may be admitted for the collateral purpose of explaining the possession of the Defendants and establishing relationship as landlord and tenant; and if it is regarded as not a present demise but recording an admission of the terms settled, it is also admissible to show that the Defendants are tenants under Raghunath Prosad and his successors-in-interest, the Plaintiffs.

As regards the defence of the Defendants that they are not tenants but are in possession in part performance of the contract for reconveyance, it is admitted that there is no written agreement of reconveyance and therefore Section 53A of the Transfer of Property Act has no application, and therefore no part performance can be pleaded. It is not necessary to come to a finding on the question whether or not there was an oral agreement for reconveyance because that question is not relevant for the purpose of the present suit. Whether or not there was such an agreement for reconveyance, the Defendants could occupy the premises which had been sold by them only as tenants or as trespassers, and there is sufficient evidence in the case to indicate that they are in possession as tenants. As regards the monthly rent, there is not only the admission in the letter (ex. 3), but also the reference thereto in para. 11 of the agreement for sale (ex. 2), and there is also the admission of Defendant No. 1, Nishi Kanta Mitra, himself in examination-in-chief that Raghunath Prosad wanted Rs. 400 from him as rent per month when the terms were being discussed between him and Raghunath Prosad. There is, therefore, no difficulty in finding that the agreed rate of rent was Rs. 400 per month.

In view of the finding that there was and is relationship as landlord and tenant between the parties, the third question urged by the learned advocate for the Appellant does not arise because the Plaintiffs can recover arrears of rent and are not compelled to pray for recovery of mesne profits for use and occupation of the premises.

Next, there is the last point, namely, that the suit was not maintainable by the Plaintiffs who instituted the suit and could not be continued by the Plaintiffs who sought to continue the suit. The suit was originally filed by Rajani Devi, widow of Raghunath Prosad and four sons of Raghunath Prosad, namely, Bholanath Prosad, Durga Prosad, Kali Prosad and Narayan Prosad. The learned advocate for the Appellant has urged that as the Plaintiffs are governed by the Mitakshara School of Hindu Law and Raghunath Prosad left not only four sons but some grandsons at the time of his death on January 30, 1943, the widow and four sons alone were not the sole owners of the assets left by Raghunath Prosad and they alone therefore were not competent to maintain the suit. It appears, however, that there is no evidence that any of the grandsons of Raghunath Prosad were born before the death of Raghunath Prosad. Such a suggestion was put to P.W. 1, the attorney for the Plaintiffs and his reply was that he had no information but no such question was put to P.W. 2, Durga Prosad, who was Plaintiff No. 1. Nishi Kanta who deposed as D.W. 1 did not also say that there was any grandson of Raghunath Prosad at the time of Raghunath Prasad''s death. There is no evidence also of existence of grandsons of Raghunath Prosad at the time when the notice to quit was served though such a finding was made by the learned Sub-Judge. Accordingly, there is no material on which it may be held that the Plaintiffs who originally filed the suit were not competent to file the same. The plaint was amended during the pendency of the suit and Durga Prosad and his son Ganesh Prosad were substituted for the original Plaintiffs, it being stated that by the terms of a family settlement which had been embodied in a decree in a partition suit among the heirs of Raghunath Prosad on the Original Side of the High Court, Durga Prosad and his son Ganesh Prosad had alone become entitled to 16 annas share to the premises No. 1, Lake Place. In support of this contention, the Plaintiffs proved ex. 7(a), the terms of settlement and family arrangement, dated January 15, 1948, and (ex. 12), a certified copy of the minutes of proceedings before the High Court, dated February 9, 1948, by which it was ordered that the suit be decreed in accordance with the terms of settlement filed. The learned advocate for the Appellant has urged that even though by the compromise decree on the Original Side of the High Court, Durga Prosad and Ganesh Prosad became entitled to 16 annas of the premises No. 1, Lake Place, there is nothing in the terms of settlement by which the arrears of rent for the premises were also assigned to them. It appears, however, that though there was no express assignment there was such assignment by implication because according to term 10 of the terms of settlement it was provided that "Durga "Prasad shall alone pay all the costs of the Alipore suit with "regard to premises No. 1, Lake Place, Calcutta". Term 14 also provided that the parties relinquished all claims against one another arising from and relating to the joint properties. After this compromise decree on the Original Side of the High Court it appears that Durga Prosad alone obtained a succession certificate for the arrears of rent due for the premises at 1, Lake Place, for the period from April 18, 1942, to January 30, 1943, Raghunath Prosad having died on January 30, 1943. u/s 381 of the Indian Succession Act, a succession certificate is conclusive as against the persons owing debts or liable on the securities'' in respect of which the succession certificate is granted. Accordingly, it is not open to the Defendants to urge in spite of the succession certificate (ex. 11) obtained by Durga Prosad that. Durga Prosad is not entitled to maintain the suit for the arrears of rent at least up to January 30, 1943. It is true that the succession certificate does not cover the period from January 31, 1943 to the end of October, 1943, also for which the suit was decreed but as already stated before, it must be held that there was implied assignment of the arrears of rent in respect of the premises No. 1, Lake Place, to Durga Prosad and his son by the terms of the compromise decree and therefore, the Plaintiffs are entitled to recover the full arrears of rent as decreed by the learned Subordinate Judge.

This appeal therefore fails and is dismissed with costs.

P.N. Mookerjee, J.

I desire to add a few words.

This is just an instance where the law of pardanashin ladies and the doctrine of undue influence have been sought to be carried beyond their logical extremes. It is clear on the evidence that the Appellant did enter into the disputed transaction of sale freely and voluntarily with full knowledge of the circumstances and full understanding of all material facts and yet the defence was put forward that she was not bound by the transaction. Upon the most charitable view of her case, all that can be said is that she has been made to assume an air of injured innocence and a vigorous attempt has been made to transmute the legal protection which law generally affords to women of her status into more or less an absolute legal liability. The warning has often been sounded-and this case clearly shows the necessity of it-that if the theory of pardanashin ladies be carried too far there is a grave danger of the greatest injustice being done in particular cases and the same applies also to the theory of undue influence. Every case has to be fairly Judged on its own facts and no undue stress should be laid either on the fact that the executant complaining is a pardanashin lady or on the mere circumstance that the transaction apparently benefited persons other than the executant. Once these are taken as the determining factors no transaction with a pardanashin lady or for the benefit of some person other than the executant would be safe. Such an attitude would be productive of more mischief than it would possibly prevent or suppress and, so far as society is concerned, the remedy may eventually turn out to be worse than the disease itself. Caution is, no doubt, needed in dealing with such transactions and, undoubtedly too, they have to be carefully examined but then, it is very necessary that this care and caution should not get confused with, or give place to, suspicion and prejudice.

In the case before us, the disputed kabala was preceded by a regular agreement for sale. This agreement was duly explained to the lady executant by her son who, at the relevant time, was certainly a graduate-and, possibly, an M.A.-and was also at that time a student of law. The kabala itself was fully explained to the Appellant by a lawyer whose only fault was that he was a practitioner in the criminal Court. That certainly did not disentitle him to explain deeds to lady clients nor did it make him incompetent to do so fully and satisfactorily according to law. He was called on behalf of the Appellant and the Appellant''s lawyer drew out from him in his examination-in-chief that he had duly explained the deed to her. Obviously, after this, there was no cross-examination of him on this point by the Plaintiffs-Respondents'' lawyer. There was no suggestion ever made to him at any stage of his examination in Court that he did not do his duty properly to his client and yet, strangely enough, that was one of the arguments strenuously put forward in support of the lady''s case. The defence that the intended transaction was a mortgage and not a sale can hardly bear scrutiny and can only miserably fail on the materials on record and under the relevant provisions of law, and the other inconsistent plea that it was a sale with a condition of re-purchase or subject to an agreement for reconveyance deserves no better fate. Both these defences have been rejected by the learned Subordinate Judge and it would have been indeed a matter of surprise if either had succeeded in the facts and circumstances of this case. It is also beyond doubt that the price paid was quite fair, adequate and reasonable and the bargain was not unrighteous or improvident or inconsiderate and not at all unjust or unconscionable.

In the course of argument, reference was made by the Appellant''s learned advocate to a large number of authorities, bearing on the law of pardanashin ladies and the theory of undue influence in relation to such persons, and various cases came to be discussed, and, as in duty bound, we had to consider them over again. Mention need be made, however, only of the cases of Kali Baksh Singh v. Ram Gopal Singh (Supra); 24 CWN 297 (Privy Council) ; Krishna Kishore De v. Nagendrabala Choudhurani (1921) 34 C.L.J. 333; Farid-un-Nisa v. Mukhtar Ahmad (Supra); 36 CWN 165 (Privy Council) ; Pattu Kumari Bibi v. Nirmal Kumar Singh Nowlakha (1939) 43 C.W.N. 907; and 45 CWN 253 (Privy Council) ; and the other case in the same volume, 45 CWN 259 (Privy Council) ; on the law of pardanashin ladies in general, and of the cases of Badiatannessa Bibi v. Ambika Charon Ghosh, (1914) 18 C.W.N. 1133; Tungabai Bhratar Purushottam Shamiji Kumbhajkar v. Yeshwanta Dinkar Jog (Supra) and A.D. Rama Pattar and Bros. v. Manikram ILR (1934) 58 Mad. 454; on the other question, namely, undue influence and of the very illuminating and instructive discussion of the the law on both the above subjects in the judgment of Mukherjee and Sharpe, JJ. in the case of Sm. Karunamoyee Devi v. Sm. Mayamoyee Devi (supra). None of these cases, however, go to the length of holding that a fair and proper bargain, intelligently made by a Hindu lady freely and voluntarily to benefit her husband and relieve him from his debts, is not to be sustained in law and indeed, in some of them, a clear warning is to be found that the Courts while bearing in mind the special position of pardanashin ladies in this country and the need of preventing injustice to them and protecting them where they are helpless and innocent should also be on the alert that no fraud is perpetrated under the cloak of such protection and plea of helplessness. In each of the above cases where the transaction was set aside there was either a finding that the lady had executed the document without proper understanding either of the contents thereof or of the nature of the particular transaction or there was clear evidence of fraud or undue influence upon her, or upon the male executant [vide, the Madras case in A.L. Rama Pattar ILR (1934) Mad.454], and, where the claimant under the deed was a third party, and not the person guilty of fraud or exercising undue influence, there was a further finding that he had notice of the fraud or undue influence and took the benefit under the deed with such notice and, in those circumstances, the impugned deeds were allowed to be avoided. In the other cases where their Lordships were unable to find fraud or undue influence, or want of intelligent understanding, or the requisite notice to the third party concerned [vide, Sm. Karunamayee Debi v. Sm. Mayamoyee Debi (Supra)], the challenge to the deed was negatived and the impugned deeds were upheld and, in some of these latter cases, the mythical element of independent advice in relation to pardanashin ladies was explained and the extreme theory in that behalf was exploded. On our findings, made above, the present case falls within this latter category and the Appellant''s attempt to avoid the sale must, therefore, fail.

It has transpired in evidence that the husband for whose benefit the transaction was evidently intended was present at every stage and from this it was sought to be argued that the transaction was vitiated by undue influence and the transferee must suffer. On facts, as appearing on the record, no undue influence has been proved and we are unable to countenance the impractical suggestion that the husband ought to have been kept removed from the scene if the transferee wanted to have a good title. It is difficult to set the limit to which one has to go to give effect to this suggestion. Is the transferee to insist on a separation between the husband and the wife to perfect his title and, even then, would he be safe? On the materials, now before us, we are unable to hold that the normal association of the husband and the wife or the natural phenomenon of the husband accompanying his wife when the latter goes to sell her property to pay off his liabilities would vitiate the transferee''s title. The wide proposition suggested has, in our opinion, only to be stated to be rejected and we need not say anything more.

On the question of admissibility of the letter (ex. 3), reference has already been made to the decision of this Court in the case of Suruchibala Roy Choudhurani v. Suruj Mia (Supra). That decision is based on the authority of the Judicial Committee in the case (1918) L.R. 46 I.A. 285 (Privy Council) and there is little doubt that the said letter (ex. 3) in spite of non-registration is clearly admissible to prove the character of the Appellant''s present possession of the suit property, that is, to establish relationship of landlord and tenant between the parties in relation to it and, once that is proved, even if there is no evidence of any agreed rent, the landlord would certainly be entitled to damages or compensation for use and occupation and, for that purpose, at least, the figure, mentioned in (ex. 3), and in D.W. 2''s evidence and also in the oral evidence of the Appellant''s husband, about the monthly payment to be made, would be clearly admissible and that would be enough on this part of the case, to sustain in substance, the decree made by the learned Subordinate Judge. Exhibit 3 also in the circumstances of this case may be held, as found above by us, to contain not a present demise but merely an admission of the terms already settled or agreed upon, including the term as to the amount of rent and the two cases, already cited in that behalf, namely, Chunilal Dutt v. Gopiram Bhotica (Supra), and Birendra Nath Roy v. Sm. Sukumari Bakshi (Supra), entitle the Plaintiffs to use it as proof of such admission, that is as proof of admission, inter alia, of the agreed monthly rent of Rs. 400 per mensem.

About the maintainability of the suit, the record does not disclose that any necessary party was left out, there being no evidence that any grandson of Raghunath Prosad was in existence at the date of the institution of the suit. The contrary finding of the learned Subordinate Judge appears to be more or less an incidental finding on a point which was never pressed in evidence and hence it is open to challenge by the Respondents in the course of their attempt to support the decree for rent, obtained by them in the trial Court, notwithstanding the fact that they have not appealed from the dismissal of their claim for ejectment. This refusal of the decree for ejectment was strictly and really based on the absence of proper notice to quit and on the further fact that there is nothing to show that the Plaintiffs had a right to forfeit the tenancy or that the conditions, necessary for enforcing such right, had been established. In this situation, "the contrary finding of the learned Subordinate Judge" to which reference has been made above, cannot stand, there being no warrant for it on the materials on record.

I agree, therefore, that this appeal should be dismissed with costs.