Sant Bux Singh v. Ali Raza Khan — 1945 DIGILAW 261 (ALL)

JUDGMENT Kaul and Walford, JJ. - This is a Plaintiff's appeal against the judgment and decree dated the 15th of October 1939, passed by the Civil Judge, Lucknow in suit No. 93 of 1936. 2. The suit out of which this appeal arises was brought by Thakur Sant Bakhsh Singh, son of Thakur Mahadeo Singh, for possession of property detailed in schedule A of the plaint and mesne profits. The claim was based on a perpetual lease executed by Khan Bahadur Mohammad Ali Khan Qizibash, on the 13th of May, 1932 in favour of the Plaintiff Appellant's father, Mahadeo Singh. There was an alternative prayer that in case the deed of the 18th May, 1932, was held not to be a lease but a mere, agreement to let, a decree for specific performance of that agreement be passed in favour of the Plaintiff. According to the plaint allegations Nawab Mohammad Ali Khan in consideration of a sum of Rs. 60,000 advanced to him by Mahadeo Singh, and various services rendered from time to time, transferred under-proprietary rights in the villages mentioned in schedule A of the plaint to the Plaintiff's father. That shortly after on the 26th of July, 1932, the lessor, who was the full owner of the estate known as taluqa Nawab-ganj Aliabad, whereof the. villages mentioned in schedule A form part, executed a deed of trust in respect of his entire property. Possession of the entire estate was thereupon taken by the trustees and when Mahadeo Singh, the lessee applied for mutation on the basis of the deed of the 18th of May, 1932, his application was opposed by them and was dismissed on the 9th of May, 1933. Mahadeo Singh died on the 14th of July, 1933, leaving the Plaintiff his only son and heir. The lessor also died on the 2nd of February, 1935, leaving Defendants 1 to 8 as his heirs. Dafendant No. 9 Nawab Nawazish Ali Khan was in possession of the thluqa Nawabganj Aliabad, inculding the property covered by the Plaintiff's lease. Nawab Nisar Ali Khan, who was Defendant No. 10 in the trial Court, was impleaded on the allegation that he also put forward a claim to Nawabganj Aliabad estate. The trustees appointed by Nawab Mohammad Ali Khan have resigned and so were not made parties to the suit. Nawab Nisar Ali Khan, who was Defendant No. 10 in the trial Court, was impleaded on the allegation that he also put forward a claim to Nawabganj Aliabad estate. The trustees appointed by Nawab Mohammad Ali Khan have resigned and so were not made parties to the suit. Of the ten Defendants the claim was contested up to its final stage only by Defendant No. 9 Nawab Nawazish Ali Khan, who was in possession of the taluqa, including the suit property. Other Defendants either did not enter appearance at all, or contended themselves only with filing written statements challenging the Plaintiff's title. 3. The Defendants admitted the execution of the lease by Nawab Mohammad Ali Khan qizilbash. It was contended, however, on behalf of the chief contesting Defendant (No. 9) that the leassor, Nawab Mohammad Ali Khan, had under the will of Nawab Nasir Ali Khan by which he acquired his title to the taluqa, only a life estate therein. He had further a power of appointment which he exercised by nominating Nawasish Ali Khan as his successor by a deed dated the 30th of June, 1934. Accordingly, apart from other ground, any lease executed by him could enure only for the period of his life. It was further pleaded that the Plaintiff Appellant's father, Mahadeo Singh, was employed by Nawab Mohammad Ali Khan as his naib and agent for prosecution of various cases, including the suit which he had to institute for possession of the taluqa, against Nawab Nisar Ali Khan. That Mahadeo Singh stood in a position of active confidence to the Nawab and had by "his viles, intriguss, deception and trickery" obtained great influence over his employer which he exercised to his own advantage. That by his false representation of his services to the deceased he prevailed upon him to execute the lease sued upon. The averment that Mahadeo Singh had advanced Rs. 60,000 to Mohammad Ali Khan from time to time was denied. It was pointed out that the deed of 18th May, 1932, though termed a lease, in effect transferred the entire property in the ten villages mentioned in schedule A of the plaint. The averment that Mahadeo Singh had advanced Rs. 60,000 to Mohammad Ali Khan from time to time was denied. It was pointed out that the deed of 18th May, 1932, though termed a lease, in effect transferred the entire property in the ten villages mentioned in schedule A of the plaint. A plea to the effect that the deed in question represented a farzi transaction, which was never intended to be acted upon by the parties, and had no binding effect in law, was also raised on behalf of some of the Defendants. Another plea urged was that the deed was void u/s 13 of the Oudh Estates Act and was unenforcible in view of the provisions of Section 10' of the Transfer of Property Act, and that its registration in Lucknow constituted a fraud upon the law of registration. 4. The learned Civil Judge, Lucknow, framed the following issues on these pleadings: 1. Was Nawab Mohammad Ali Khan Qizilbash absolute owner of the property (in suit? If so, its effect on the deed in dispute ? 2. Was the deed in dispute in favour of the Plaintiff's father obtained by undue influence and fraud is alleged on behalf of the contesting Defendant ? 3. What rights does this deed confer on the transferee? 4. Is the deed without consideration and fictitious as alleged by the Defendants? 5. Is the deed void u/s 13 of the Oudh Estates Act ? 6. Was the Plaintiff's father in a position of active confidence with Nawab Mohammad Ali Khan in Qizilbash? If so, does the deed in dispute represent a genuine and bona fide transaction ? 7. Is the relief claimed by the Plaintiff for specific performance barred by time? 8. To what relief is the Plaintiff entitled ? 9. Whether a fraud on registration was committed as alleged by Defendant No. 9? If so, its effect ? 5. It was held under issue No. 1 that Nawab Mohammad Ali Khan Qizilbash had only a life estate in taluqa Nawabganj Aliabad. Issue 2 was found in favour of the Plaintiff and against the Defendants. It was held under issue 3 that the lease not having been executed in accordance with the provisions of Section 107 of the Transfer of Property Act was ineffectual and could not be enforced. Issue 4 was found against the Defendants. Issue 2 was found in favour of the Plaintiff and against the Defendants. It was held under issue 3 that the lease not having been executed in accordance with the provisions of Section 107 of the Transfer of Property Act was ineffectual and could not be enforced. Issue 4 was found against the Defendants. Issue 5 does not appear to have been pressed and was answered in the negative. The findings on issues 6 and 9 were against the Defendants. Issue 7 was found against the Plaintiff. As a result of these findings the claim was dismissed. Hence this appeal. 6. The suit in the trial Court was brought in forma paupers, but an application to file an appeal against the decree of the trial Court as a pauper was rejected and the appeal was admitted on payment of the requisite Court fee. 7. Nawab Nisar Ali Khan who was arrayed as Defendant No. 10 died since the appeal was filed and his name was removed from the array of parties. 8. All the findings of the Court below have been challenged before us. Those which were against the Appellant were attacked by him and the rest that were against the Respondents were challenged by Respondent No. 9, Nawab Nawazish Ali Khan. 9. One of the points that arise for consideration in this appeal is whether Nawab Mohammad Ali Khan Qizilbash was the full owner of Nawabganj Aliabad or he had only a life estate with a power of appointment which he exercised in favour of Respondent No. 9. For a full appreciation of the points whereon the answer to this question depends it will be necessary to state a few facts. 10. The pedigree found below will be helpful in tracing the devolution of the taluqa Nawabganj Aliabad from the time of its original grant to Nawab Ali Raza Khan and in understanding the provisions of the will of 1896 executed by Nawab Nasir Ali Khan under which Nawab Mohammad Ali Khan acquired a title to this taluqa. See page 15 11. As a reward for his eminent services to the British Government Sardar Ali Khan was granted a pension of Rs. 800 a month and was awarded a confiscated estate in Oudh. See page 15 11. As a reward for his eminent services to the British Government Sardar Ali Khan was granted a pension of Rs. 800 a month and was awarded a confiscated estate in Oudh. This estate is known as taluqa Nawabganj Aliabad and is entered at No. 161 in list 1 and No. 39 in List v. Nawab Ali Raza Khan died 24th June, 1865. attached to the Oudh Estates Act 1 of 1869. The grant was thus, according to Section 8 of Act 1 of 1869, a grant to a grantee, declaring that the intestate succession to the estate should thereafter be regulated by the rule of primogeniture. On the death of Nawab Ali Raza Khan on the 24th of June, 1865, he was succeeded by his eldest son Nawazish Ali Khan. Sir Nawazish Ali Khan executed a will on the 14th of February, 1882, under the terms of which he appointed his brother Nasir Ali Kban his successor in respect of Nawabganj Aliabad property in Oudh. These facts which I have taken from the report of the case Nisar Ali Khan v. Mohammad Ali Khan (1929) 6 O.W.N. 549 were accepted by all the parties. 12. On the 15th of July, 1896 Nawab Nisar Ali Khan executed at Lahore a will Ex. 122 which was duly registered. It was not disputed before us in the present appeal that Nawab Nasir Ali Khan was the full owner of taluqa Nawabganj Aliabad. It was further admitted that Nawab Mohammad Ali Khan Qizilbash derived his title to this taluqa under the will of the 15th of July, 1896. The question for consideration, therefore, is what rights were conferred upon him by this will. This will is as follows: I am Haji Nawab Ali Khan, son of Nawab Ali Raza Khan, deceased, caste Qizilbash owner and taluqdar of Nawabganj Aliabad, District Bahraich, Oudh, at present residing at Lahore. The question for consideration, therefore, is what rights were conferred upon him by this will. This will is as follows: I am Haji Nawab Ali Khan, son of Nawab Ali Raza Khan, deceased, caste Qizilbash owner and taluqdar of Nawabganj Aliabad, District Bahraich, Oudh, at present residing at Lahore. Whereas life is uncertain and transitory and I having considered it necessary and proper to appoint my successor and legatee, so, I while in possession of sound faculties of body and mind, without undue influence and coercion, do hereby stipulate and reduce it into writing that I u/s 11 of Act I of 1869 d6 hereby appoint my own brother's ton, Nawab Fateh Ali Khan, son of Nisar Ali Khan, deceased, as my successor and legatee of the taluqdari riasat, Nawabganj Aliabad, pargana Charda Bhigha, district Bahraich and alto situate in. the Bahraich city proper, Oudh, including all the moveable and immoveable properties and articles, and all the rights external and internal and rights of easements, which I got by virtue of a registered deed of will dated 14th February, 1892, u/s 11 Act I of 1869, executed by my elder brother Sir Nawab Haji Nawazish Ali Khan, deceased, and thereafter the said Sir Nawab had during his own lifetime in the year 1889, having got the said riasat taluqdari including all the rights, mutated in my name appointed me as the owner of the same like himself, without any co-sharer, and which is still in my possession and ownership since the date of mutation. I further stipulate that the legatee, i.e., Nawab Fateh Ali Khan shall exercise after my death the same powers like owner in respect of the said taluqdari ilaqa and all the moveable and immoveable properties which I have got at present, provided he remains alive, after the death of Nawab Fateh Ali Khan, the legatee, my son Nawab Mohammad Ali Khan if alive, shall be his successor He shall also have the same powers, which have been given to Nawab Fateh Ali Khan by virtue of this will after the death of my son Nawab Mohammad Ali Khan. Nawab Hidayat Ali Khan, son of Sir Nawab Haji Niwazish Ali Khan, deceased, shall be his successor, if he be alive. After the death of all these three successors, that son, of these successors shall become the successor, who shall be found fit. Nawab Hidayat Ali Khan, son of Sir Nawab Haji Niwazish Ali Khan, deceased, shall be his successor, if he be alive. After the death of all these three successors, that son, of these successors shall become the successor, who shall be found fit. The last legatee shall have the right to appoint a successor from among the descendants of these legatees, whom he considers to be best fitted. If the last legatee dies without appointing any successor, then all the male descendants of each of the three successors, shall have the power to appoint a successor from among themselves whomsoever they deem fit. The successors shall continue to be appointed according to this procedure. In case of difference the Government shall have the light to appoint a successor from among the descendants of each of the three successors whomsoever they think fit. If any person from my family puts forward any claim for maintenance against the wishes of the taluqdar, i.e the successor, then he shall not be entitled to maintenance in any way. The successors shall have the right to award maintenance on condition of good conduct and obedience, or they may not award. If any of my heirs or any family member, puts forward any claim for ownership in respect of the said ilaqa or in respect of any part or whole of moveable or immoveable property then it shall be void and not maintainable. Wherefore these few presents by way of will u/s 11 of Act 1 of 1869 have been reduced into writing, so that they may serve as authority and be of use when needed. 13. This will has been the subject of interpretation by this Court as well as by the Judicial Committee of the Privy Council in various litigations relating to the properties owned by the Qizilbash family. On the death of Nawab Nasir Ali Khan Sir Fateh Ali Khan entered into possession of Nawabganj Aliabad taluqa and other property mentioned in his will. He died in 1923. On his death Nawab Mohammad Ali Khan had to bring a suit for possession of the taluqa against Sir Fateh Ali Khan's son, Nawab Nisar Ali Khan. This case is reported in Nisar Ali Khan v. Mohammad Ali Khan (1933) 59 I. A. 268. He died in 1923. On his death Nawab Mohammad Ali Khan had to bring a suit for possession of the taluqa against Sir Fateh Ali Khan's son, Nawab Nisar Ali Khan. This case is reported in Nisar Ali Khan v. Mohammad Ali Khan (1933) 59 I. A. 268. On an examination of the terms of this will, as well as other will relating to the punjab property owned by the family, which was practically in identical terms with the will Ex. 1-22 their Lordships observed as follows: The dominant intention of the testator as displayed by each of the wills is, in their Lordship's judgment, an intention that the property should pass to three persons in succession and thereafter to some one or more persons selected in a specified manner. This intention is inconsistent with the idea of a series of absolute interests and could only be given effect to with such a series if each taker voluntarily denied himself the exercise of all power of alienation, inter vivos; and disposed of the property testamentarily to the next taker in accordance with the testator's scheme. Without a succession of limited interests the dominant intention cannot have effect, and regarding each will as a whole their Lordships are of opinion that life interests only are conferred. This view receives additional support from the fact that the gift to each subsequent taker is expressed to be to him if alive or provided he be alive and after the lifetime of the previous taker and that the testator refers to all three named taker as his successor. The gift in the Oudh will of taluqdari powers and in the Punjab will of the same powers as the testator had must in their Lordships' opinion be read as a gift of sush powers so far as is consistent with the subsequent provisions of the instrument. 14. As a result of this construction of the will, Nawab Mohammad Ali Khan's claim to taluqa Nawabganj Aliabad, which had succeeded in this Court was affirmed, and Nisar Ali Khan's appeal was dismissed. 14. As a result of this construction of the will, Nawab Mohammad Ali Khan's claim to taluqa Nawabganj Aliabad, which had succeeded in this Court was affirmed, and Nisar Ali Khan's appeal was dismissed. Their Lordships concluded their judgment dealing with this part of the case in the following; words: The Appellant's appeal therefore fails, as upon this construction their Lordships are of opinion that the Respondent was entitled On Sir Fateh's death to succeed to the Oudh and Juliana properties as next tenant for life, both Courts below having held that the will was assented to by Nawab Nasir's heirs so far as was necessary to comply with Mahomedan law in regard to the Juliana properties. Their Lordships express no opinion as to the effects of the wills after the death of the Plaintiff, the third tenant for life being already dead. 15. The remarks in the last paragraph were necessitated because Hidayat Ali Khan, son of Sir Nawazish Ali Khan, who was to take under the will after the death of Nawab Mohammad Ali Khan, died in 1924. In view of this clear expression of the opinion by their Lordships of the Judicial Committee as to the true construction of the will of Nawab Nasir Ali Khan there could hardly be room for further discussion as to its meaning. Advantage was, however, taken of the observations in the last paragragh quoted above and it was contended that in view of the death of Hidayat Ali Khan it must be taken that Nawab Mohammad Ali Khan took an absolute estate. The argument of the Learned Counsel for the Appellant, so far as we could follow, was that according to the construction placed by the Judicial Committee on this will the testator intended to confer absolute estates on each of the three persons named therein succession; but as effect could not be given to this intention in the case of any taker so long as the successor who was to follow him was alive, their Lordships were constrained to limit the interest taken by Fateh Ali Khan to a life estate only. Nawab Mohammad Ali Khan also took only a life estate when succession opened on the death of Sir Fateh Ali Khan, but as on the death of Hidayat Ali Khan in 1924 the impediment to his taking an absolute estate was removed, he became the full owner. Nawab Mohammad Ali Khan also took only a life estate when succession opened on the death of Sir Fateh Ali Khan, but as on the death of Hidayat Ali Khan in 1924 the impediment to his taking an absolute estate was removed, he became the full owner. Support for this contention was, sought to be found in the following observations of Sir Louis Stuart in his judgment in Nisar Ali Khan v. Muhammad Ali Khan (1929) 6 O. W. N. 349. To my mind the intention is very clear Nawab Nasir Ali Khan had in his mind as his main intention the intention of preserving the estate intact. Although on the words he used it is possible to arrive at a finding that the holder had a power of transfer, it is clear to me that he did not intend any holder to touch the corpus of the property. The whole of the will read together convinces me that his one intention was to preserve the property intact. The estate was to be considered sacred. It was never to diminish. It was to continue from holder to holder and never to be less that the estate that came into his hands. I cannot reconcile the creation of three exactly similar estates to be held in turn by Fateh Ali Khan. Muhammid Ali Khan and Hidayat Ali Khan as compatible with an intention to grant to Fateh Ali Khan a full proprietary estate and then divert the succession firstly to Muhammad Ali Khan and secondly to Hidayat Ali Khan. Thus it appears to me that Fateh Ali Khan obtained nothing more than a limited estate which terminated with his death. How far he had powers of transfer it is not necessary for me to decide. It is not suggested that he ever made any transfers. But the estate devised to him in my opinion fell far short of an absolute estate. It was a limited estate. It seems academic to discuss the limitations beyond the main limitation that it terminated with his life. This being the case, the decision of this portion of the appeal can proceed in the following manner. Either the disposition was only effective to convey a limited estate to Fateh Ali Khan, and the disposition then ceased to be effective or the disposition was sufficiently effective to convey a similar limited estate to the Plaintiff. This being the case, the decision of this portion of the appeal can proceed in the following manner. Either the disposition was only effective to convey a limited estate to Fateh Ali Khan, and the disposition then ceased to be effective or the disposition was sufficiently effective to convey a similar limited estate to the Plaintiff. It is of no consequence which view is taken for the decision of this portion of the appeal, for in either case, the Plaintiff has become absolute owner of Nawabganj Aliabad on the death of Sir Fateh Ali Khan. Hidayat Ali Khan having died in 1925, and thus having predeceased the Plaintiff his limited estate, (if it ever existed) has disappeared. In whom would the remainder vest? According to the terms of the will the remainder never vests. The line of succession laid down by the testator is obviously me to which Act 1 of 1869 cannot give effect. It offends against the law forbidding perpetuities'. It creates interests in person unborn and is in every way objectionable. The remainder must clearly vest in Nisar Ali Khan's heir-at-law. Muhammad Ali Khan is now his sole heir-at-law. There were at the time of Nasir Ali Khan's death three heirs, his widow, Fatima Begum, his daughter Zohra Begum the wife of Sir Fateh Ali Khan, and the Plaintiff. The widow being a childless widow was under the Imamia law entitled to no share in the immoveable property. But apart from that, she died in 1916. Zohra Begum died in 1912. Thus Muhammad Ali Khan is the sole heir at law. It is unnecessry to discuss whether in addition to being sole heir under the Imamia law he is also sole heir under the rule of primogeniture by viture of the retrospective effect of Local Act 111 of 1910, If he obtained a limited estate on Sir Fateh Ali Khan's death he also obtained the remainedr, and thus became full proprietor. If the disposition became inoperative on Sir Fateh Ali Khan's death he succeeds as heir at law. In eitheir case he becomes full proprietor. 16. If the disposition became inoperative on Sir Fateh Ali Khan's death he succeeds as heir at law. In eitheir case he becomes full proprietor. 16. With the greatest respect to that learned Judge we must say that the question whether Nawab Mohammad Ali Khan took a life estate, or became an absolute owner as a result of the death of Hidayat Ali Khan, did not arise in the appeal in which Sir Louis Stuart's judgment was given. His Lordship's remarks were obiter dicta which cannot be treated as part of the decision of the Bench. It was for this reason that in delivering the opinion of the Board in Nisar Ali Khan v. Mohammad Ali Khan2, Lord Tomlin observed: Their Lordships express no opinion as to the effects of the wills after the death of the Plaintiff, the third tenant for life being already dead. 17. After the decision reported in 59 I.A. the right construction to be put upon this will is beyoud dispute. It is clear that the will Ex. 1-22 conferred only a life interest on Sir Fateh Ali Khan and on Nawab Mohammad Ali Khan. This was the opinion expressed by their Lordships in so many words. It is therefore idle to contend now that on a correct interpretation of the will in question an absolute estate was conferred upon any of the three persons mentioned. 18. Can it be said, however, that owing to the death of Hidayat Ali Khan in the life time of Nawab Mohammad Khan the latter's life estate became an absolute estate? Learned Counsel for the Appellant adopted the line of reasoning contained in Sir Louis' judgment at page 57 in Nisar Ali Khan v. Mohammad Ali Khan. The question was asked in whom would the remainder vest? The answer is if only three life estates were granted the reversion, after the grant of these particular estates would, under the terms of the will, vest in the person in whose favour the power of appointment was exercised by the last legatee. Whatever be the effect of the condition contained in the will "that the line of successor shall continue according to this very rule", on those who came after the person in whose favour the power of appointment was exercised, we can see no valid objection to such appointee taking the estate after the death of the legatees expressly named therein. Whatever be the effect of the condition contained in the will "that the line of successor shall continue according to this very rule", on those who came after the person in whose favour the power of appointment was exercised, we can see no valid objection to such appointee taking the estate after the death of the legatees expressly named therein. The remainder would vest in him. If the power of appointment given by the will was not exercised, then it would vest in the person who might be considered "fit and superior" amongst themselves by the male descendants of each of the three successors named. But we know that Nawab Mohammad Ali Khan exercised the power of appointment in favour of Respondent No. 9, (I 21) and the reversion vested in him. 19. It was faintly suggested that no power of appointment was given to Nawab Mohammad Ali Khan. This power was given only to Hidayat Ali Khan who was the last legatee. We are clear that this contention is without substance. Even a cursory perusal of the will in question shows that of the three successors named in the will Hidayat Ali Khan could succeed and be a legatee under the will only if he survived Mohammad Ali Khan. But as he did not survive, Mohammad Ali Khan was the last of the three legatees named, as such could exercise the power of appointment mentioned in the will. 20. Another argument advanced by the Learned Counsel for the Appellant was that on a correct interpretation of this will each of the three succesors named therein took a life estate with a power of alienation and a power of appointment in the last legatee. It was argued that on the language used in the will an absolute estate was intended to be given to the legatees. This had to be cut down only in so far it was necessary to give effect to the intention of the testator that each sucessor should take the property, provided he survived the person named before him. This it was contended, did not take away the power of alienation implicit in the absolute estate which was conferred. On the language of the will and the construction put thereon by this Court as well as by the Judicial Committee it is difficult to appreciate the force of this contention. This it was contended, did not take away the power of alienation implicit in the absolute estate which was conferred. On the language of the will and the construction put thereon by this Court as well as by the Judicial Committee it is difficult to appreciate the force of this contention. The dominant intention of the testator, as observed by their Lordships was that the property should pass to three persons in succession and thereafter to some one or more persons selected in a specified manner. If we accept the contention put forward by the Learned Counsel for the Appellant it would follow that in case Fateh Ali Khan chose to make a gift of taluqa Nawabganj Aliabad in favour of his son or some other person Nawab Mohammad Ali Khan could take nothing. So far as we could follow the Learned Counsel his contention was that Mohammad Ali Khan and Hidayat Ali Khan (if he had lived), could take only whatever was left over after the death of the previous taker or takers if any of them chose to exercise the power of alienation. Thus, according to the contention put forward, it depended upon any of these legatees to defeat what was the dominant intention of the testator only by a transfer inter vivos in favour of any person. It is impossible to take such a view after the expression of opinion by their Lordships of the Judicial Committee in Nisar Ali Khan's case. We agree with the Court below that Nawab Mohammad Ali Khan had only a life estate with a power of appointment in taluqa Nawabganj Aliabad whereof the villages covered by the lease executed in favour of Mahadeo Singh form part. It may be mentioned that the nature of the estate which Nawab Mohammad Ali Khan had in taluqa Nawabganj Aliabad at the time of his death came up for consideration in a case on the original side of this Court in Ali Raza Khan v. Nawazish Ali Khan 1938 845 O.W.N. 1157 and the view taken by the present Chief Judge who decided that case, after a very careful and elaborate examination of all the relevant material, if we may so without disrespect, was that Mohammad Ali Khan had only a life estate in taluqa Nawabganj Aliabad. This decision was confirmed on this point on appeal by a Bench of this Court in Ali Raza v. Nawazish Ali Khan 1943 OA 22 : O.W.N. 50 (67). 21. We may now turn to a consideration of the points covered by issues 2, 4 and 6 framed by the trial Court. The trial Court has found all these issues against the Defendants. These findings were challenged by the Learned Counsel for Respondent No. 9. He contended that the lower Court approached the question from a wrong point of view. According to him Mahadeo Singh stood not only in a position of active confidence to Nawab Mohammad Ali Khan but also in a fiduciary relation to him, and it was his duty to protect the interest of the Nawab. That an unfair advantage was taken of his position by Mahadeo Singh in securing the lease Ex. 116. He contended that even though there might be no definite proof of a fraud being practised by Mahadeo Singh on the Nawab, it was for the Plaintiff Appellant to prove the good faith of the transaction and to establish that it was not obtained by undue influence. 22. In order to examine the force of these contentions we may consider the circumstances in which Nawab Mohammad Ali Khan was placed in relation to Mahadeo Singh. It was admitted by the Plaintiff as P.W. 8 that his father Mahadeo Singh was appointed the general agent of Nawab Mohammad Ali Khan in 1930 and continued to act as such till his death in 1933. We have the further evidence of P.W. 3, Nasiruddin, that Mahadeo Singh was the general agent of Nawab Mohammad Ali Khan when the perpetual lease Ex. 116 was excuted. It was further admitted by the Plaintiff Appellant in his evidence that as general agent of Nawab Mohammad Ali Khan Mahadeo Singh was in charge of all his litigation, and he was employed to secure funds for that litigation as well as for the house-hold expenses of Nawab Mohammad Ali Khan. Mahadeo Singh continued to perform these duties throughout his employment by the Nawab. 23. We gather from the evidence on record that on the death of Nawab Sir Fateh Ali Khan there arose disputes as regards possession of the property left by him between his son Nasir Ali Khan and Nawab Mohammad Ali Khan. Mahadeo Singh continued to perform these duties throughout his employment by the Nawab. 23. We gather from the evidence on record that on the death of Nawab Sir Fateh Ali Khan there arose disputes as regards possession of the property left by him between his son Nasir Ali Khan and Nawab Mohammad Ali Khan. During the life time of Sir Fateh Ali Khan Nawab Mohammad Ali Khan received an allowance of Rs. 1,600 per month from him. This allowance, which so far as we are aware was his only income, ceased with the death of Sir Fateh. Naturally, therefore, his financial position was embarrassing to a degree. Not only his only means of subsistence ceased, but he found himself faced with a litigation in order to establish his title to the Qizilbash estates, including taluqa Nawabganj Aliabad. All this involved expenditure of large sums of money. In these circumstances Nawab Mohammad Ali Khan came to Oudh. Even before the civil suit which went up to the Privy Council and was decided in 1932 was instituted, there was litigation between Nisar Ali Khan and Nawab Mohammad Ali Khan in the Revenue Courts for mutation of names with regards to the taluqa villages. It would appear fron the Appellant's statement as P.W. 8 that his father had been in the service of Nawab Mohammad Ali Khan for six or seven years before he was appointed his general agent in 1930. What his duties were when he was first employed by the Nawab is not clear, but we know it from Ex. 31 that Thakur Mahadeo Singh was appointed manager of taluqa Nawabganj Aliabad from the 1st of January, 1925. The civil suit was instituted in the same year and was decided in 1927. The possession of the taluqa was with the receiver. It is therefore legitimate to infer that during the period between his first employment by Nawab Mohammad Ali Khan, and the decision of the Privy Council in 1932, Thakur Mahadeo Singh was mainly concerned with looking after the Nawab's litigation and securing funds for that purpose as well as for the Nawab's household expenses. At this period, so far as we know Nawab Mohammad Ali Khan had no independent source of income nor was he in possession of any property. At this period, so far as we know Nawab Mohammad Ali Khan had no independent source of income nor was he in possession of any property. Nazir Husain, D.W. 3, stated that Thakur Mahadeo Singh entered the services of Nawab Mohammad Ali Khan for the purpose of securing loans for the Nawab... Later on Mahadeo Singh became general agent of Nawab Mohammad Ali Khan and was in his confidence. Mahadeo Singh wielded much influence over Nawab Mohammad Ali and he trusted him very much because he used to secure loans for him and to render service to him and care much for the comfort of Nawab Siheb. 24. We have it from another witness D.W. 4 Syed Mohammad Razi that Mahadeo Singh was in charge of the affairs "both private and relating to the litigation" of Nawab Mohammad Ali Khan for several years before the lease Ex. 116 was executed. Some idea of the influence which Thakur Mahadeo Singh wielded over Mohammad Ali Khan may be gathered from an incident mentioned in the evidence of D.W. 3, Nazir Husain. He stated: One day Mahadeo Singh did not come to Nawab Mohammad Ali Khan who was told by his servants that Mahadeo Singh was afraid that Saadat Husain Khan, son of Nawab Mohammad Ali Khan, would shoot him if he goes to Babraich to take delivery of the estate on behalf of Mohammad Ali Khan after the Privy Council judgment. Thereupon, Mohammad Ali Khan was much annoyed with his son and in the morning took with him his son, went to the house of Mahadeo Singh at Deorhi Aghamir and there asked Saadat Ali Khan to apologise to Mahadeo Singh. 25. Reference in this connection may also be made to the evidence of Syed Mohammad Razi, D.W. 4. According to him before spending any money Nawab Mohammad Ali Khan used to consult Mahadeo Singh and acted upon his advice. The Nawab's son, Saadat Husain Khan, mostly stayed with his father both at Lucknow and at Lahore. But Saadat Husain Khan was not allowed by Nawab Mohammad Ali Khan to interfere with what Mahadeo Singh did or with the spending of any money by Mahadeo Singh. 26. This witness had advanced some loans to Nawab Mohammad Ali Khan from time to time. One of these loans of Rs. 4,500 was advanced in 1926. But Saadat Husain Khan was not allowed by Nawab Mohammad Ali Khan to interfere with what Mahadeo Singh did or with the spending of any money by Mahadeo Singh. 26. This witness had advanced some loans to Nawab Mohammad Ali Khan from time to time. One of these loans of Rs. 4,500 was advanced in 1926. According to the witness this sum was paid by him to Nawab Mohammad Ali Khan who handed it over to Mahadeo Singh. Mahadeo Singh went with this money to another room where the witness, Mehr Ali and Agha Yequb, were sitting. There Mahadeo Singh mentioned that Rs. 450 out of the sum advanced was due to him on account of his commission on the loan. Besides this Mahadeo Singh demanded a separate commission of Rs. 225 from the witness who had advanced the loan to the Nawab. The witness refused to "pay the commission as the sum of Rs. 4,500 was loan advanced by him direct to Nawab Mohammad Ali Khan. This matter was ultimately reported to the Nawab. We would give in the witness' own words what the Nawab said about it: I told Nawab Mohammad Ali Khan that Mahadeo Singh wanted me to pay him Rs. 225 as commission on the loan of Rs. 4,500 which I had advanced to him. Nawab Mohammad Ali Khan replied that as Mahadeo Singh arranged loans for him, let him do what he did and that I should directly deal with him and pay whatever money I could without the knowledge of Mahadeo Singh. After that I advanced loans several times to Nawab Mohammad Ali Khan without the knowledge of Mahadeo Singh. 27. The position therefore as appears from the evidence was that in the death of Nawab Sir Fateh Ali Khan Nawab Mohammad Ali Khan found himself in embarrassing financial circumstances. His only source of income-an allowance of Rs. 1,600 per month which he received from his cousin-was stopped. In addition to what he required for his daily needs he had to find money to meet the heavy expenses necessarily involved in a big litigation. He had to establish his title to the family property which he claimed under the will of Nawab Nasir Ali Khan. He came to Oudh where this litigation was to be fought out. Here he employed Mahadeo Singh who was put in charge of all his affairs. He had to establish his title to the family property which he claimed under the will of Nawab Nasir Ali Khan. He came to Oudh where this litigation was to be fought out. Here he employed Mahadeo Singh who was put in charge of all his affairs. He looked after Mohammad Ali Khan's litigation, raised loans not only for the litigation but also for his employer's household expenses. In January, 1925, he was appointed Nawab Mohammad Ali Khan's manager of the estate, though no property was in possession of the Nawab at that time. In 1930 he was appointed his general agent. As was natural in these circumstances not only was Mahadeo Singh in Nawab Mohammad Ali Khan's active confidence, but wielded considerable influence over him. 28. The learned Civil Judge in the Court below found that Mahadeo Singh was Nawab Mohammad Ali Khan's manger and mukhtar and that his duties were to look after the litigation and provide funds for that litigation as well as for the household expenses of the Nawab. The learned Judge, however, found it difficult to hold that Mahadeo Singh could dominate the will of Nawab Mohammad Ali Khan or could be said to have been in a position of active confidence in his relation with/the Nawab. 29. The only ground on which he based this opinion was that Nawab Mohammad Ali Khan, had been an Honorary Magistrate, an Honorary Assistant Collector, and had acted as Vice Chairman of the Lahore Municipal Board. He was a person upon whom the Government had conferred the title of C.S.I. According to one of the witnesses, the Nawab was a muamila fahm person (a man who had a good understanding of affairs). We are unable to agree with the conclusion arrived at by the learned Civil Judge. Assuming that Nawab Mohammad Ali Khan was an intelligent man who had a good understanding of affairs, this is in no way inconsistent with Mahadeo Singh, upon whom he depended for everything, and who looked after his litigation and other affairs, being in his active confidence. He was the Nawab's manager of estate and his general agent. As such he was bound to protect the interest of the Nawab. That the Nawab trusted him and, to use the language of Lord Thankerton in Thakurji Maharaj v. Msr. He was the Nawab's manager of estate and his general agent. As such he was bound to protect the interest of the Nawab. That the Nawab trusted him and, to use the language of Lord Thankerton in Thakurji Maharaj v. Msr. Ram Dei AIR 1960 P.C 139 a "relation of confidentiality" existed between the two cannot admit of any doubt. This is abundantly proved, apart from other circumstances, from the two incidents to which reference was made in the evidence of D.W. 4, Syed Mohammad Razi. We are further clear that not only was Nahadeo Singh in active confidence of Nawab Mohammad Ali Khan but also stood in a fiduciary relationship to his employer. That as the Nawab's manager of estate and general agent who looked after his litigation there can be no doubt that he stood in a position of trust in relation to the Nawab and this is what is implied by the term "fiduciary relationship". In making these observations we are not unmindful of the fact that Nawab Mohammad Ali Khan's son, Saadat Husain Khan, mostly lived with him, and that besides Mahadeo Singh he had for some time other mukhtars also. We have it from the evidence that Mehr Ali Khan was Nawab Mohammad Ali Khan's general agent and Agha Mohammad Yaqub of Punjab was employed by him as his pleader. But as we find from the statement of D.W. 4, Syed Mohammad Razi, both of them ceased to act for the Nawab in 1929, and after "their removal" Mahadeo Singh was in charge of all the affairs of the Nawab. 30. u/s 111 of the Indian Evidence Act when there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. Section 6 of the Indian Contract Act which defines "undue influence" says that a person is deemed to be in a position to dominate the will of another where he stands in a fiduciary relation to the other. Section 6 of the Indian Contract Act which defines "undue influence" says that a person is deemed to be in a position to dominate the will of another where he stands in a fiduciary relation to the other. It further lays down that where a person who is in a position to dominate the will of another, enters into a contract with him and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other. It is true, as observed by Moulton, L. J. in Comber v. Comber (1911) 1 Ch. 723 at 728 fiduciary relations are of many types. They extend from the relation of myself to an errand boy who is bound to bring me back my change, up to the most intimate and confidential relations which can possibly exist between one party and another, when the one is wholly in the hands of the other because of his infinite trust in him. 31. It must be conceded that it is not every fiduciary relationship which can be deemed sufficient to lead to the inference that the person standing in such relation to another is in a position to dominate his will. But in the present case, as appears from the evidence and the circumstances in which Nawab Mohammad Ali Khan was placed in relation to his agent and manager Mahadeo Singh, it is only legitimate to infer that he was in a position to dominate his employer's will. Nawab Mohammad Ali Khan did not belong to Oudh. He came from the Punjab. He was a man of expensive habits. His only source of income, the monthly allowance he got from Sir Fateh Ali Khan, was suddenly stopped. He had to fight out a big litigation against Sir Fateh's son, Nawab Nisar Ali Khan. He had, so far as we are aware, nothing except a disputed title to a large estate to offer as security for the loans which it was necessary for him to raise for his litigation and other requirements. Mahadeo Singh not only looked after his litigation but also had the duty of securing loans for him. He had, so far as we are aware, nothing except a disputed title to a large estate to offer as security for the loans which it was necessary for him to raise for his litigation and other requirements. Mahadeo Singh not only looked after his litigation but also had the duty of securing loans for him. Naturally under these circumstances even if Mohammad Ali Khan was an astute person and a man of understanding he would be very much under the domination of his general agent and Naib. 32. The next question to consider is whether the contract entered into between Mahadeo Singh and his employer appears on the face of it or on the evidence un-conscionable. There can be no doubt that Mahadeo Singh had rendered valuable assistance to Nawab Mohammad Ali Khan. There are circumstances to suggest that Mahadeo Singh was very helpful to the Nawab in the prosecution of his litigation the final decision of which by the Judicial Committee secured him a valuable taluqa. There is, however, as found by the Court below no evidence, except the admission of Nawab Mohammad Ali Khan in the lease Ex. 116, that Rs. 60,000 was advanced to him by Mahadeo Singh from time to time. Our conclusion on the evidence is that Mahadeo Singh was a man of ordinary means, and it was in the highest degree unlikely that he could have advanced such a comparatively large sum of money to his employer. The present Appellant, Mahadeo Singh's son, attempted to prove that his father raised part of the money which he advanced to Nawab Mohammad Ali Khan by pawn of the jewellery belonging to his wife and daughter-in-law. He had, however, to admit in cross-examination that he had no personal knowledge of these facts. It was admitted by Thakur Sant Bakhsh Singh (Plaintiff Appellant) that Mahadeo Singh used to maintain account books in which he entered the details of the sums spent by him on account of Nawab Mohammad Ali Khan. These account books were, however, according to his version, handed over by Mahadeo Singh to Nawab Mohammad Ali Khan when he obtained a "release" in respect of the money belonging to the Nawab which was entrusted to him. These account books were, however, according to his version, handed over by Mahadeo Singh to Nawab Mohammad Ali Khan when he obtained a "release" in respect of the money belonging to the Nawab which was entrusted to him. Even if those account books were handed over to Mohammad Ali Khan, we would expect the Plaintiff to produce the books of account of his own family wherein the sums advanced by his father to his employer must be recorded. No. such documents are forthcoming. 33. Turning to the lease in question we find that it relates practically to a fourth share of the entire taluqa. A rent of Rs. 12,000 per year is reserved by this lease. There is no expressly reserved right of re-entry in the lessor. It is a perpetual and heritable lease under which the lessee was to enjoy all the powers which the lessor had in the property devised. Thus it will be seen that it virtually constituted Mahadeo Singh owner of the villages covered by this document. It appears from a scrutiny of the relevant papers that though the rent reserved by the lease was only Rs. 12,000 per annum, the annual revenue payable in respect of the villages was Rs. 12,842-8-0. It follows, therefore, that not only Mohammad Ali Khan for all practical purposes parted with a fourth share of his taluqa in favour of Mahadeo Singh but further undertook to pay Rs. 842-8-0 in respect of the Government revenue due for the villages covered by the lease every year from his own pocket. It was observed by the learned Civil Judge (on the basis of a statement made by the Plaintiff Appellant in the witness box), that in the villages in question a remission of 20 per cent of the rental was allowed by the Government, and that if the remissions were deducted from the amount of land revenue and local rate payable in respect of the villages in question, there was a "sufficient margin left to form a consideration for the lease". This argument overlooks the fact that any remission that were allowed, were only temporary, but the lessor was under the terms of the lease debarred from increasing the annual rent reserved thereby. This is sufficient to bring the document within the mischief of Section 16 of the Indian Contract Act. On the evidence adduced the document certainly appears to be unconscionable. This is sufficient to bring the document within the mischief of Section 16 of the Indian Contract Act. On the evidence adduced the document certainly appears to be unconscionable. 34. It may be observed that as mentioned in the lease itself, part of the consideration for the transfer consisted in the services rendered by Mahadeo Singh to Nawab Mohammad Ali Khan. This lease was executed on the 18th of March, 1932. We find, however that a year previously a deed of gift was executed by Nawab Mohammad Ali Khan in favour of Mahadeo Singh to reward him for his services (Ex. 117). This deed of gift comprised only five out of the ten villages covered by the lease. The deed of gift is dated the 8th of May, 1931. There is on the record another document Ex. 29, a draft of a deed of gift dated the 15th of February, 1931, which shows that originally Nawab Mohammad Ali Khan considered only three villages as sufficient reward for the services rendered by his agent and Naib. Thus we find that in February, 1931, Mahadeo Singh's services were considered to be sufficiently rewarded by a gift of three villages. In May, 1931, the number of villages whereof a gift was made in lieu of his services was increased to five (Ex. 117). A year after in May, 1932, instead of a deed of gift Mohammad Ali Khan executed a lease in his favour covering ten villages including the original five. It was also suggested that Nawab Mohammad Ali Khan appears to have been under a misapprehension about the property which he was transferring to his mukhtar to compensate him for his services. The lease makes a reference to the previous deed of gift. The following extract from Ex, 116 will give us an idea of the ostensible object of this transaction: The Thakur Saheb has spent rupees sixty thousand which together with the interest thereon will become a big amount from his own pocket for my good. He has taken great pains for my work and has rendered help to me at a time when no body was prepared to help me. With the grace of God and on account of the efforts of the aforesaid Thakur Saheb I have succeeded in winning the suits. I, the executant am very much pleased with the good service rendered by the said Thakur Saheb. With the grace of God and on account of the efforts of the aforesaid Thakur Saheb I have succeeded in winning the suits. I, the executant am very much pleased with the good service rendered by the said Thakur Saheb. It has been my ardent desire to make a gift of the following property in favour of the aforesaid Thakur Saheb in lieu of his obligation and services. Therefore I executed a deed of absolute gift in respect of the property mentioned in the aforesaid deed in favour of aforesaid Thakur Saheb on the 8th May, 1931 and got it also registered. But as the Receiver was in possession thereof I could not deliver possession of the gifted property to the aforesaid Thakur Saheb within six months of the date of execution of the deed of gift. After taking legal opinion I find it doubtful whether the gift will be valid if possession is not delivered within six months. Therefore, in order to confirm my intentions and promises, I think it desirable to execute a perpetual lease with respect to the property mentioned in the aforesaid deed with right of transfer generation after generation, in favour of aforesaid Thakur Saheb, his heirs and representatives, so that he may have the same rights with respect to the property which I the executant had given to aforesaid Thakur Saheb in the deed of gift. 35. From the extract reproduced above it would appear that Nawab Mohammad Ali Khan intended to execute a perpetual lease with respect to the property mentioned in the deed of gift only though we actually find that the lease covers not only five villages, which form the subject of the gift, but ten, including those five. All this naturally calls for careful scrutiny. The transaction as we have held, was between parties one of whom stood in a fiduciary relations to the other, and as such must be deemed to be in a position to dominate the other's will. The transaction appears on the evidence adduced to be unconscionable. u/s 111 of the Indian Evidence Act, in the circumstances of the present case, it lay upon the Plaintiff Appellant to establish the good faith of the transaction. No satisfactory evidence is forthcoming to establish it. There is no evidence beyond the admission of Nawab Mohammad AH Khan in the lease itself that Rs. u/s 111 of the Indian Evidence Act, in the circumstances of the present case, it lay upon the Plaintiff Appellant to establish the good faith of the transaction. No satisfactory evidence is forthcoming to establish it. There is no evidence beyond the admission of Nawab Mohammad AH Khan in the lease itself that Rs. 60,000 bad been spent by Mahadeo Singh for him. This admission, having regard to the Mahadeo Singh's own status and financial position as also the held he had acquired upon Nawab Mohammad Ali Khan, is not rf much value. In this connection reference may also be made Ex. 26, copy of a deposition made by Nawab Mohammad Ali Khan, when he was examined as a witness in the Court of the Subordinate Judge, Mohanlalganj, Lucknow, on the 30th of August, 1929. In the course of his cross-examination the Nawab stated: I have taken money from Mahadeo Singh. How much I cannot say. How much is farzi I cannot say. 36. Thus it will be seen that according to Mohammad Ali Khan's suggestion Mahadeo Singh bad obtained from him some documents which evidenced only farzi loans. We have already drawn attention to the conditions of this lease which prove it to be a highly improvident act on the part of Nawab Mohammad Ali Khan to have executed it. In the absence of any evidence to establish the bona fides of the transaction it is not possible to uphold it. 37. u/s 16 of the Contract Act also it lay upon the Plaintiff to prove that this contract was not induced by undue influence. No such evidence was given. Consequently u/s 19 of the Contract Act it was a voidable transaction. That Nawab Mohammad Ali Khan repudiated it soon after, can hardly admit of any doubt. Two months after executing the less in question Nawab Mohammad Ali Khan executed a deed of trust relating to his property (See Ex. No such evidence was given. Consequently u/s 19 of the Contract Act it was a voidable transaction. That Nawab Mohammad Ali Khan repudiated it soon after, can hardly admit of any doubt. Two months after executing the less in question Nawab Mohammad Ali Khan executed a deed of trust relating to his property (See Ex. 1-20.) The following extract will show the object with which it was executed: Whereas at the death of Sir Fateh Ali Khan the executant had no funds to prosecute his case and had to borrow large sums from various creditors both in the Punjab and U.P., whereas the executant considers that the various creditors should be paid out of the usufruct of the properties decreed to him and that the properties decreed should be put in possession of such persons in whom the creditors may have full confidence, therefore, in order to pay off the debts and for the better management of the above properties, the executant thought it proper to execute a deed of trust.... 38. Five trustees were appointed under this deed of trust of whom Nawab Mohammad Ali Khan was one. The trustees were authorised to get mutation of their names affected on the basis of the deed and it was further provided that they will be entitled to make collections of rent from tenants, take enhancement and ejectment proceedings etc. against the tenants, and file suits in their names, in other words they will have all powers appertaining to the good management of the property... The properties shall remain in possession of the trustees as long as the whole debt is not wiped off and as soon as the debts are paid off the trustees will be bound to restore possession of the properties to the executant. 39. No mention of ihe lease Ex. 116 is made in this deed of trust. The decision of their Lordships of the Privy Council in Nawab Mohammad Ali Khah's case was pronounced on the 21st of April, 1932. The lease in Mahadeo Singh's favour was executed on the 18th of May, 1932. 40. Two months after on the 26th of July, 1932, Nawab Mohammad Ali Khan executed the deed of trust to which reference has been made. The lease in Mahadeo Singh's favour was executed on the 18th of May, 1932. 40. Two months after on the 26th of July, 1932, Nawab Mohammad Ali Khan executed the deed of trust to which reference has been made. Shortly after the pronouncement of the judgment of the Judicial Committee possession of the taluqa was handed over by the receiver to Nawab Mohammad Ali Khan on the 4th of October, 1932. On the 18th of October, 1932, (Ex. I-1) an application was made by Mahadeo Singh, general agent of Nawab Mohammad Ali Khan for mutation of the taluqa villages in favour of the Nawab, Three weeks after this application, which was presented over the signature of Mahadeo Singh, trustees (of whom Nawab Mohammad Ali Khan was one on the 10th December, 1932, made an application for mutation of the taluqa villages in their favour on the basis of the deed of trust (Ex. 12). This application asked for mutation of all the villages constituting the taluqa including those which formed the subject of the lease in favour of Mahadeo Singh. It appears that on the same date on which the trustees applied for mutation in their favour, Mahadeo Singh had also put in an application for mutation of the ten villages covered by his lease in his name. This application was opposed by the trustees. Ex. I-18 is a copy of the order passed by Mr. F.W.W. Baynes, Deputy Commissioner, Bahraich, which gives all these facts. It shows that the trustees objected to mutation being effected either in favour of Mohammad Ali Khan or of Mahadeo Singh. Mahadeo Singh obtained two adjournments but could produce no evidence in support of his application and it was dismissed on the 9th of May, 1933, for lack of evidence. Mahadeo Singh filed an appeal against that decision. The appeal was dismissed on the 22nd of July, 1933, as Mahadeo Singh died in the interval and his Counsel bad no intructions to proceed with the appeal. On the 31st of July, 1933, his son, the present Appellant, Sant Bakhsh Singh, filed another application for mutation on the basis of the lease. This was opposed by the trustees and was finally dismissed by the Board of Revenue on the 4th May, 1934. Thus it is clear that Nawab Mohammad Ali repudiated the lease within a month of its execution. This was opposed by the trustees and was finally dismissed by the Board of Revenue on the 4th May, 1934. Thus it is clear that Nawab Mohammad Ali repudiated the lease within a month of its execution. Not only was there an implied repudiation by the Nawab by his inclusion of the ten villages, to which the lease related in the deed of (rust without any reference to the lease in that document, but it was followed by an express repudiation by him as along with other trustees he opposed Mahadeo Singh's application for mutation made on the basis of that lease. In this view of the matter the Appellant's Learned Counsel's argum-ment, that the lease having remained uncancelled for three years, it was not open either to the heirs and personal representatives of Nawab Mohammad Ali Khan or to Defendant No. 9 to avoid it is not of much significance. 41. It may be pointed out that this was not a suit brought by Nawazish Ali Khan or any of the heirs of Nawab Mohammad Ali Khan for possession. They are Defendants in this suit, and the property covered by the lease continued all along in possession of the lessor, and after him in that and of Nawazish Ali Khan, Respondent No. 9. As observed by Rustomji in his law of Limitation, (5th Edn. Vol. II, page 873). Rangnath Sakharam v. Govind Narasinv (1904) 28 Bom. 639, Minalal Shadiram v. Kharsetji Jivaji (1906) 30 Bom. 395, and Gopal Bhaurao Jape v. Shree Jagannath Pandit Wasudeora Pandit Maharaj (1935) 59 Bom. 502, lay down the correct law on the subject. In the last mentioned case the lands in suit were leased to the Plaintiff by Defendant No. 1 by a registered deed dated July 8, 1922, for a period of 25 years. On March 12, 1927, a suit was filed by the Plaintiff for an injunction restraining Defendant No. 1 from interfering with his possession, and in 1 the alternative for possession of the lands if Defendant No. 1 was held to he actually in possession. Defendant No. 1 resited the suit on the ground that the lease was obtained from him by undue influence and misrepresentation. The lower Courts upheld the contention and dismissed the suit. Defendant No. 1 resited the suit on the ground that the lease was obtained from him by undue influence and misrepresentation. The lower Courts upheld the contention and dismissed the suit. On appeal to the High Court it was contended for the Plaintiff that Defendant No. 1 was precluded from challenging the validity of the lease as, if he bad sued to have the lease set aside, the suit would have been barred by the law of limitation and that it was not open to a Defendant in the mofussil to raise a defence in the nature of a counter claim. It was held that Defendant No. 1 was not preculded from urging by way of defence that the lease was obtained by the Plaintiff by undue influence and misrepresentation although a suit by him to have the instrument set aside or cancelled would have been time barred under Article 91 of the Limitation Act. 42. The Indian Limitation Act is not applicable to the case of Defendant, and the party in possession is not affected by it. It refers only to the remedy of the Plaintiff and not even to his rights and even though the remedy may be barred, the right may still exist. The case in Jugaldas v. Ambashankar (1909) 12 Bom. 501 which is generally relied on in support of the opposite view was distinguished. We will leave the matter at that as it is unecessary to pursue it further in view of these authorities. 43. A suggestion was also made that the lease in question was a fictitious document, having been executed on account of an apprehension that the superintendence of Nawab Mohammad Ali Khan's estate would be assumed by the Court of Wards. If this contingency arose, these ten villages, whereof a nominal lease executed in favour of his own mukhtar by Nawab Mohammad Ali Khan, would furnish him with an income in addition to the allowance which he might get from the Court of Wards. Reliance is placed on the following circumstances in support of this contentions: There was a notification published in the U.P. Gazette on the 25th June, 1932, that an inquiry into the indebtedness of Mohammad Ali Khan would be held to determine whether the superintendence of his estate should or should not be assumed by the Court of Wards. 44. Reliance is placed on the following circumstances in support of this contentions: There was a notification published in the U.P. Gazette on the 25th June, 1932, that an inquiry into the indebtedness of Mohammad Ali Khan would be held to determine whether the superintendence of his estate should or should not be assumed by the Court of Wards. 44. This inquiry was held on the 22nd of July, 1932. It was suggested that as Mohammad Ali Khan got an inkling of what was in contemplation of the Government with regard to the superintendence of his estate he executed this fictitious lease on the 18th of May, 1932, and followed it up by executing a deed of trust to which reference has already been made. On the 8th of August, 1932, there was a second notification published in the Gazette which made it clear that the question of taking the estate of Nawab Mohammad Ali Khan under the Court of Wards had been dropped by the Government. This was followed by a clear repudiation of the lease in favour of Mahadeo Singh by Nawab Mohammad Ali Khan who along with other trustees opposed the lessee's application for mutation. Though this evidence standing by itself does not warrant a definite conclusion that the lease in favour of Mahadeo Singh was a fictitious document, the circumstances are highly suspicious and the suggestion made by the Learned Counsel for Respondent No. 9 on their basis cannot be said to be altogether far fetched. 45. To sum up we find that Mahadeo Singh stood in a position of active confidence to Nawab Mohammad Ali Khan and accordingly u/s 111 of the Indian Evidence Act the burden of proving good faith of the transaction represented by the lease in question lay upon the present Appellant. He has failed to discharge this burden. We are further clear that Mahadeo Singh occupied a fiduciary position in relation to Mohammad Ali Khan and was in a position to dominate his will. On the evidence adduced the lease in question appears to be an unconscionable bargain. In these circumstances it must be deemed to have been brought at out by exercise of undue influence u/s 16 of the Indian Contract Act. This transaction was repudiated by Nawab Mohammad Ali Khan soon after. The Appellant having failed to discharge the burden which lay upon him the transaction cannot be upheld. 46. In these circumstances it must be deemed to have been brought at out by exercise of undue influence u/s 16 of the Indian Contract Act. This transaction was repudiated by Nawab Mohammad Ali Khan soon after. The Appellant having failed to discharge the burden which lay upon him the transaction cannot be upheld. 46. Before taking leave of this part of the case we may give our reasons for the order dated the 18th September, 1945, passed by us on an application made by Respondent No 9. After this appeal was filed an application was made on behalf of Respondent No. 9 for admission of a letter purporting to have been written by Mahadeo Singh to another servant of Nawab Mohammad Ali Khan, named Badri Nath, It was urged that this document had an important bearing on the questions that formed the subject matter of issues 2, 4 and 6 in the Court below. That Respondent No. 9 was not aware of the existence of this document while the suit was in the trial Court. Accordingly it was prayed that he might be permitted to produce it and rely thereon in this appeal. The application purported to be made under Order 41 Rule 27 of the Code of Civil Procedure. No doubt an appellate Court has under Rule 27 the power to admit additional evidence in appeal, but as is clear from the language of Order 41, Rule 27 this is not the general rule. On the other hand the general rule is that parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. May be that the existence of this document was not known to Respondent No. 9 while the suit was in the trial Court, but that by itself will not justify us in allowing it to be produced in appeal. This rule as amended by the Oudh Chief Court makes the fact, that the evidence sought to be adduced by a party to the appeal is evidence, which after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order under appeal was passed or made, a ground to be taken into consideration in determining whether fresh evidence should or should not be permitted to be adduced in appeal. It follows, however, from the general rule embodied in the opening portion of Rule 27 that additional evidence shall be admitted only in exceptional cases where refusal to do so might result in injustice. No party to an appeal can as of right ask for admission of additional evidence. It is a matter to be determined by the appellate Court whether additional evidence should or should not in the circumstances of any particular case be allowed to be produced. One of the factors which the Court should in such cases take into consideration is the bearing which the evidence sought to be adduced is likely to have on the matters in controversy in the appeal. If the evidence sought to be adduced has only a slight or remote bearing on the questions in controversy we, are of opinion that it should not be admitted. It is only in cases where it turns the scale in favour of one party, or is likely to materially effect the decision of any point arising in the appeal, that such evidence should be permitted to be adduced. Looking at the letter to produce which permission is sought, we are not satisfied that it fulfills the required conditions. The application was accordingly rejected. 47. Only one more point remains to be considered. u/s 107 of the Transfer of Property Act where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instrument than one, each such instrument shall be executed by both the lessor and the lessee. In the present case the lease Ex. 115 was executed only by the lessor and not by the lessee. Accordingly it was contended on behalf of the Respondents that it was an incomplete document which in law failed to transfer any rights to the intended lessee. The trial Court's finding on this question was in favour of the Defendants. In reply to this objection it was contended by the Learned Counsel for the Appellant that the document in question was in reality not a lease but a sale of under-proprietary rights and accordingly compliance with the provisions of Section 107 was not necessary. We are unable to accept this contention and view the transaction evidenced by Ex. 116 in this light. The difference between a lease of immoveable property and a sale of an under proprietary tenure is well understood. We are unable to accept this contention and view the transaction evidenced by Ex. 116 in this light. The difference between a lease of immoveable property and a sale of an under proprietary tenure is well understood. An under-proprietary tenure is a tenure peculiar to Oudh and has its special incidents. Though in one sense a subordinate right, it partakes of the character of a proprietary interest in land. The rules governing the rights of the superior proprietor and the under-pro-prietor differ materially from those which apply to leases of immoveable property and are contained in Chapter v. of the Transfer of Property Act. 48. u/s 105 of that Act a lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms. Applying this definition to the document in question we find that it fulfills all the necessary requirements of a lease. It is called a lease and is stamped as a lease. May be that the rights which were intended to be conferred by this lease are analogous to those of an under-proprietor. None the less it does not cease to be a lease subject to all the rules applicable to a transfer of that character. It cannot be denied that rules relating to forfeiture contained in Section 111(g) would apply to it. For instance if the lessee renounces his character by setting up a title in a third person, or by claiming title in himself, that would result in forfeiture of the lease and give the lessor a right of re-entry. It is significant to note that not only did Nawab Mohammad Ali Khan describe it as a lease, but in their applications for mutation of names made by Mahadeo Singh and after him by his son, the present Appellant, also called the document a lease, We are clear that Ex. 116 is a lease of immoveable property pure and simple and is governed by the provisions of Chapter v. of the Transfer of Property Act. 116 is a lease of immoveable property pure and simple and is governed by the provisions of Chapter v. of the Transfer of Property Act. Inasmuch as the provisions of Section 107 of the Act were not complied with, the document cannot be given effect to. These provisions are mandatory. 49. It follows from a perusal of Section 107 that a lease is in the nature of a bilateral agreement. By it certain rights are acquired and obligations incurred by the lessor as well as by the lessee. The law requires that their consent to this agreement shall be indicated by each of them signing the document of transfer. Where this is not done there is no valid lease. We are satisfied that the Court below came to a correct conclusion on this point. 50. It may be mentioned that in addition to ten villages the lease covered two plots of land situate in Lucknow. These lands were house building sites in respect of which leases were obtained by one Ram Prasad from the Lucknow Improvement Trust. He transferred his rights under those leases to Nawab Mohammad Ali Khan. There could be no question of creation of any under-proprietary rights in these lands. 51. No other point was raised in the appeal. 52. The result of the findings arrived at above is that the appeal fails and is dismissed with costs. As Respondent No. 9 was the only Respondent who appeared at the hearing of the appeal he alone shall be entitled to costs.