Judgement Appeal from a judgment and decree of the Court of the Judicial Commissioner (May 21, 1908) reversing a judgment and decree of the Subordinate Judge of Rae Bareli (February 15, 1907). The main question in the appeal was as to the validity of a deed of gift purporting to have been executed on September 24, 1903, by Balraj Kuar, a literate pardanishin lady. One Bishunath Singh was the owner of considerable zamindari property, including a 9 annas 8 pies share in each of the villages Baradih and Asaipur. He had a son, Brij Mohan Singh, who died in 1882, leaving a widow, Balraj Kuar. At various dates between 1883 and 1894 Bishunath Singh made deeds of gift to her of immovable property, including the above-mentioned shares in two villages. After the death of Bishunath Singh in 1894, Balraj Kuar formed an intimacy with the appellant Kali Bakhsh Singh, her mukhtar, and they openly lived together as husband and wife. Two daughters were born of this alliance. Balraj Kuar also became attached to Ganga Bakhsh Singh (the second appellant), the infant legitimate son of the appellant Kali Bakhsh Singh. She brought him up as her own son and kept him under her care and protection as long as she lived. On September 24, 1903, Balraj Kuar, who had considerable experience of business matters, executed a deed of gift of a 9 annas 8 pies share in each of the villages Baradih and Asaipur in favour of Ganga Bakhsh Singh. This represented about half the property which she possessed. The deed was signed by four persons as witnesses, including the patwari and the family priest, and was registered by the sub-registrar, who gave a certificate of registration. On November 25, 1903, Balraj Kuar died. On September 17, 1906, one Bhola Singh, since deceased and represented by the respondents, and another commenced a suit against the appellants claiming possession of the property the subject of the gift by succession from Bishunath Singh. They alleged that Balraj Kuar had only a life interest in the property and that the deed of gift was invalid on the grounds that it was executed under the undue influence of the appellant, Kali Bakhsh Singh, and that Balraj Kuar was incapable of understanding her affairs and did not understand the effect of the deed. The Subordinate Judge delivered judgment on February 15, 1907. The Subordinate Judge delivered judgment on February 15, 1907. He found that Balraj Kuar voluntarily executed the deed of gift in a sound state of mind and after understanding its terms and effect. He accordingly dismissed the suit. The plaintiffs appealed to the Court of the Judicial Commissioner, which delivered judgment on August 22, 1907. The learned Judicial Commissioners agreed with the view of the Subordinate Judge that the plaintiffs had failed to prove that Balraj Kuar was at the date of the deed either insane or so enfeebled by illness that she was unable to understand its purport. While expressing some doubt as to the adequacy of the explanation given, they were of opinion that, the grantor being a pardanishin woman, the gift could not be upheld in the absence of independent advice. They accordingly remanded the case to the Subordinate Judge for a finding upon issues which had not been dealt with. These issues included the question as to the validity of a will made by Balraj Kuar in 1892 by which the property in suit was devised to Bishunath Singh for life with remainder to a person not a party to the suit. The Subordinate Judge found these issues in the plaintiffs favour, holding that the will was invalid i+n the absence of proof of independent advice. Objections to these findings were filed in the Court of the Judicial Commissioner. That Court by its judgment delivered on May 21, 1908, upheld the findings upon these issues ; in the result the plaintiffs appeal was allowed and a decree for possession made. De Gruyther, K.C., and Dube, for the appellants. The rule as to the validity .of a gift by a pardanishin lady is laid down in Sajjad Husain v. Wazir All Khan (( 1912) L. R. 39 Ind. Ap. 156.) and the cases there cited. It is that the onus is on the grantee to prove that the transaction was explained to the grantor and was understood by her. The appellants satisfied this onus. The Subordinate Judge found that the deed was explained to Balraj Kuar, and though in the Court of the Judicial Commissioner some doubt was thrown upon the general adequacy of such explanations, this finding was not dissented from. The appellants satisfied this onus. The Subordinate Judge found that the deed was explained to Balraj Kuar, and though in the Court of the Judicial Commissioner some doubt was thrown upon the general adequacy of such explanations, this finding was not dissented from. The grantor was accustomed to manage her own affairs, and there is no reason to suggest that she did not understand the effect of the deed, which was perfectly intelligible and dealt with property of which she had a personal knowledge extending over many years. The circumstances under which the deed was made satisfied the tests proposed by Lord Macnaghten in Mahomed Buksh Khan v. Hosseini Bibi. (( 1888) L. R. 15 Ind. Ap. 81.) As was held in that case, the matter is not one in which legal or independent advice was necessary. The learned Judicial Commissioners were wrong in the view which they took that independent advice was essential in order to rebut the presumption of undue influence. [In re Coomber ([ 1911] 1 Ch. 723.) was also referred to.] Sir Erle Richards, K.C., and Boss, K.C., for the respondents. The gift must be treated as a gift to the donees father, the first appellant, since he would have the benefit of it, and the onus was upon him to prove that the deed was not executed under his influence. That onus, was not discharged in the absence of independent advice. The law in India as to undue influence is founded on English law but is. extended and adapted to the special circumstances of pardanishin ladies. The rule is correctly stated as follows in Trevelyans Hindu Law, 1912, p. 490 " it is clear that a pardanishin lady is not bound by an alienation unless it be distinctly proved that she was aware of all the circumstances and of the nature and effect of the transaction, that no advantage was taken of her position, and that she had independent advisers." [Reference was made to the Indian Evidence Act, 1872, s. Ill; Ameer Ali and Woodroffes Law of Evidence, 5th ed., 1911, pp. 694 and 697; Kanai Lal Jowhari v. Kamini Debi(( 1867) 1 Beng. L. R. (O.S.C.) 31, n.); and, as to the law in England, to the judgment of Cotton L.J. in Allcard v. Skinner (( 1887) 36 Ch. D. 145, at p. 171.), and to Pollock on Contracts, 8th ed., 1911, pp. 694 and 697; Kanai Lal Jowhari v. Kamini Debi(( 1867) 1 Beng. L. R. (O.S.C.) 31, n.); and, as to the law in England, to the judgment of Cotton L.J. in Allcard v. Skinner (( 1887) 36 Ch. D. 145, at p. 171.), and to Pollock on Contracts, 8th ed., 1911, pp. 640 et seq.] The facts in Mahomed Buksh Khan v. Hosseini Bibi (L. R. 15 Ind. Ap. 81.) were peculiar and render the decision inapplicable to the present appeal. The grantor in that case had made an undoubtedly good gift to her daughter. Upon the daughters death the grantor became entitled to a sixth of her property and thus recovered the subject of the gift. It was in these peculiar circumstances that she made, in favour of her deceased daughters infant children, the disputed gift which was upheld although the grantor had not independent advice. De Gruyther, K.C., in reply. There is no judgment of the Board which supports that part of the passage in Trevelyans Hindu Law which suggests that a deed of gift by a pardanishin lady is necessarily invalid in the absence of independent advice. [He referred to Hakim Muhammad lkram-ud-din v. Najiban. (( 1898) L. R. 25 Ind. Ap 137.)] The judgment of their Lordships was delivered by LORD SHAW OF DUNFERMLINE. This is an appeal from a judgment and decree of date May 21, 1908, of the Court of the Judicial Commissioner of Oudh, which reversed a judgment and decree of the Subordinate Judge of Rae Bareli, dated February 15, 1907. The plaintiffs ask that a decree for actual and proprietary possession of certain shares in villages in Pargana Salon be passed in their favour against the defendants, and for an account of mesne profits. It is unnecessary to enter upon many details of the case. The portion of it which was laid before the Board consists in a demand for cancellation of a deed of gift dated September 24, 1903, executed by one Balraj Kuar in favour of Ganga Bakhsh Singh, son of the appellant Kali Bakhsh Singh. This deed has been upheld by the Subordinate Judge, and has been declared invalid by the Court of the Juicial Commissioner. It is important to observe what were the grounds for the cancellation of this deed. This deed has been upheld by the Subordinate Judge, and has been declared invalid by the Court of the Juicial Commissioner. It is important to observe what were the grounds for the cancellation of this deed. They are gathered together in the issues framed by the Subordinate Judge, and are as follows — (1.) Did the lady execute the deed of gift ? (2.) Was it "written and completed without her knowledge ? Was she able to understand" the transaction ? (3.) Was she of unsound mind at the time of the writing of the said deed ? The relation of the parties to the deed was, briefly stated, this Balraj Kuar, who died two months after the execution of the deed of. gift, was a pardanishin lady. She was possessed of a number of villages, or rather of shares therein, and she had become absolute owner thereof as the result of gifts made by one Bishunath Singh. At least six deeds of gift are produced, and there can be little doubt that the lady thoroughly understood this form of transaction. Her husband had died many years before, namely, in 1881, and her property was managed by Kali Bakhsh Singh, who was her mukhtar, and with whom she formed an intimacy, the result of which was the birth of two illegitimate daughters. One of these was alive at the date of the deed. Ganga Bakhsh Singh was the legitimate son of Kali Bakhsh Singh, and the suggestion seems to be warranted which points not only to the affection which Balraj Kuar had for Kali Bakhsh, but to the attachment which she had formed to the boy. The interests represented by the plaintiffs are derived from remote relationship to Brij Mohan Singh, the deceased husband, and to Bishunath Singh, the father-in-law of the lady. Upon the issues as framed and the contentions of parties as pled, the Subordinate Judge, who manifestly conducted the case with great care, had no doubt. As to the plaintiffs evidence he holds that it " is absolutely unreliable, and seems to me a pure concoction." Reasons are given for this opinion, and the judgment upon this part of the case does not seem to be controverted in the Court of the Judicial Commissioner. In short, the attack upon the deed by the evidence led by the plaintiffs has failed. In short, the attack upon the deed by the evidence led by the plaintiffs has failed. As to the evidence tendered in support of it the matter stands thus Ex facie, it is duly signed and attested. It bears the signature of Balraj Kuar, of the patwari, Lachman Per shad, and of three other witnesses, including the family priest. Above all there is the certificate of Bunyad Husain, the sub-registrar of Salon, as to what occurred when the deed was produced by Balraj Kuar before him at her residence. It is duly registered. There seems no reason to doubt the value of his testimony, which is believed in its entirety by the Subordinate Judge. Apart from the circumstances to be now mentioned the deed appears to be beyond suspicion, being attested by just those persons who would be naturally called in for such a purpose and being registered in the usual way by the proper officer. Their Lordships incline to the opinion that the judgment of the Subordinate Judge would not have been reversed but for the controlling weight which was attached by the Court of the Judicial Commissioner to the fact that the lady in the transaction had not independent advice. The view, put briefly, adopted in that Court is this The deed was executed in favour of the son of a paramour, and therefore, to all intents and purposes, in favour of the paramour himself, he also being a person who was her mukhtar. Although there is no direct evidence that he ever influenced her to make a gift in favour of his son, still, in the circumstances, the deed (so it is maintained) must fall, because the law makes an absolute demand that a person in such a situation should have independent advice. The absence of this element entitles a Court of law to set the deed aside. There are several circumstances which favour this conclusion. In the first place, the lady was a pardanishin lady, and the law throws around her a special cloak of protection. It demands that the burden of proof shall in such a case rest, not with those who attack, but with those who found upon the deed, and the proof must go so far as to shew affirmatively and conclusively that the deed was not only executed by, but was explained to, and was really understood by, the grantor. It demands that the burden of proof shall in such a case rest, not with those who attack, but with those who found upon the deed, and the proof must go so far as to shew affirmatively and conclusively that the deed was not only executed by, but was explained to, and was really understood by, the grantor. In such cases it must also, of course, be established that the deed was not signed under duress, but arose from the free and independent will of the grantor. The law as just stated is too well settled to be doubted or upset. It was expressly reaffirmed by this Board in Sajjad Husain v. Wazir Ali Khan (L. R. 39 Ind. Ap. 156,), and nothing that is now said can, or is intended to, disturb it. In the next place, a fact which has given rise in their Lordships minds to considerable difficulty has been that Kali Bakhsh, the father of the donee and the mukhtar of the donor, was not examined as a witness. This brief review is given by way of indication that the judgment now to be announced has been arrived at after a full balancing of the considerations both in fact and in law which affect the question to be determined. The property conveyed by the deed of gift amounted, as the Board were informed, to about one half of the ladys estate. It was not contended that her outward style or mode of life had thereby been changed, or that any impoverishment had occurred, the case being thus distinguished from those of donations of practically the entire property of the donor, of which the case of Sajjad Husain above referred to was an instance. Their Lordships are satisfied on the salient features of the case as follows — 1. 1. As to the execution of the deed. The challenge of this has failed, and both the Courts below hold the execution to be properly and satisfactorily established. 2. 2. As to the capacity of the grantor. Upon this subject the Courts below are also agreed in holding that competency is proved. In their Lordships judgment, this is so, as after mentioned, in a special degree. 3. 3. As to the deed being read over and explained. Again both Courts are agreed. 2. 2. As to the capacity of the grantor. Upon this subject the Courts below are also agreed in holding that competency is proved. In their Lordships judgment, this is so, as after mentioned, in a special degree. 3. 3. As to the deed being read over and explained. Again both Courts are agreed. But while the Subordinate Judge thinks that the explanation was thorough, the Judicial Commissioners appear to incline to the view that it was perfunctory. Upon this matter much depends upon whether the grantor of the deed was a person accustomed to business or to the management of affairs. It is upon this point that their Lordships find themselves in agreement with the Subordinate Judge. In doing so they found upon what is admitted, not only by him, but by the Court of the Judicial Commissioner. It appears that the lady had been in the habit for a considerable period of years of managing her affairs, of entering up her accounts, and of attending to business. Upon another part of the case it rather appears from the judgment of the Judicial Commissioner, Mr. Chamier, that the lady had much strength of will, and that her father-in-law, Bishunath Singh, " used to obey Balraj Kuar more than the latter obeyed him "; while with reference to the issue now under discussion, the same Judicial Commissioner says, " It is proved by evidence adduced by the plaintiffs that Balraj Kuar signed her own accounts and looked after her own affairs." Their Lordships, in short, do not entertain much doubt that this pardanishin lady vas a capable woman, fully alive to the direction of her own interests, and well aware of what she was doing. 4. 4. As to undue influence. Nothing of this kind is proved affirmatively, and the inference upon the subject must depend to a considerable extent upon the view which is taken as to the capacity of the grantor of the deed. The suggestion that Kali Bakhsh prompted a gift in favour of his son does not seem to rest upon anything more than that he was mukhtar, or held a power of attorney in regard to the management of her property. It is regrettable that the matter was left thus in the region of conjecture. The suggestion that Kali Bakhsh prompted a gift in favour of his son does not seem to rest upon anything more than that he was mukhtar, or held a power of attorney in regard to the management of her property. It is regrettable that the matter was left thus in the region of conjecture. There is no evidence of any kind that the mukhtar either mismanaged or overmanaged anything committed to his charge or that in any particular regarding her affairs he withstood the lady or controlled her purposes. It is accordingly necessary to consider whether the facts of this case fall under the general and useful category of the principle which, in the language of Lord Kingsdown in Smith v. Kay(( 1859) 7 H. L. C. 750, at p. 779,), "applies to every case where influence is acquired and abused, where confidence is reposed and betrayed." Their Lordships do not find themselves able to affirm that such abuse or betrayal occurred. It is no doubt true that the evidence in such a case would not require to have been very strong, but there is no evidence at all which would lead to the conclusion. As stated, their Lordships incline to think that the judgment of the Subordinate Judge would have been affirmed by the Judicial Commissioners but for the view thus expressed " It is needless to cite authorities to shew that such a gift cannot stand unless it is proved that the lady had independent advice." In their Lordships opinion there is no rule of law of the absolute kind here indicated. The possession of independent advice, or the absence of it, is a fact to be taken into consideration and well weighed on a review of the whole circumstances relevant to the issue of whether the grantor thoroughly comprehended, and deliberately and of her own free will carried out, the transaction. If she did, the issue is solved and the transaction is upheld; but if upon a review of the facts—which include the nature of the thing done and the training and habit of mind of the grantor, as well as the proximate circumstances affecting the execution—if the conclusion is reached that the obtaining of independent advice would not really have made any difference in the result, then the deed ought to stand. The present, in their Lordships judgment, appears to be a case of that kind. The present, in their Lordships judgment, appears to be a case of that kind. Their Lordships, as already mentioned, have fully in view the fact that the lady was a pardanishin lady, but the evidence as to her strength of will and business capacity, and the fact that the deed as granted is not in the circumstances of her life in any way an unnatural disposition of part of her property, go far, taken together with the evidence in this case, to convince them that the deed was granted by her as the expression of her deliberate mind and apart from any undue influence exerted upon it. In short their view is that if independent outside advice, which is an essentially different thing from independent outside control, had been obtained, the lady would have acted just as she did. Much as their Lordships support and approve of the protection given by law to a pardanishin lady, they cannot transmute such a legal protection into a legal disability. She might, especially if the outside adviser had been a lawyer, have altered the shape or form of the transaction, but in substance and result she would have carried out the same purpose and will as are expressed by the deed under challenge. They refer to the judgment of Lord Macnaghten in Mahomed Buksh Khan v. Hosseini Bibi. (L.R. 15 Ind. Ap. 81.) In these circumstances their Lordships will humbly advise His Majesty that the judgment and decree appealed from should be reversed, and that of the Subordinate Judge of date February 15, 1907, should be restored. The appellants will be entitled to the costs since the date of the last-mentioned judgment and to the costs of this appeal.