Judgement

Consolidated Cross-appeals from a decree of the Chief Court of Oudh (October 13, 1930), which reversed a decree of the Subordinate Judge of Gonda (September 9, 1929) and decreed the plaintiffs suit in part.

The suit was instituted on May 12, 1926, by the two respondents to the first appeal against the appellant therein. The chief matters for determination in the present appeal were (a) whether a deed of gift executed on May 15, 1914, by the plaintiff Tirbhawan Dutt in favour of his elder brother Someshwar should be set aside ; (6) whether the right to sue to have it set aside was barred by limitation.

The facts of the case are fully stated in the judgment of the Judicial Committee.

The Subordinate Judge dismissed the suit. He rejected the case of misrepresentation made by the plaintiffs and held that upon the pleadings it was not open to them to base their claim upon undue influence ; he held further that a suit on the latter ground was barred by the Indian Limitation Act, 1908, Sch. I., art. 91.

An appeal to the Chief Court was heard by Hasan C. J. and Pullan J. and was allowed. Upon the evidence the learned judges were of opinion that plaintiff No. 1 was not a person of ordinary intelligence capable of managing his own affairs, and that, having regard to s. 16 of the Indian Contract Act, 1872, the defendant was to be deemed to have been in a position to dominate his will. They held that, apart from the question of the mental capacity of plaintiff No. 1 to understand the deed of gift, it should be set aside on the ground of undue influence, and that the suit was not barred by art.

91. In their opinion the undue influence persisted so long as plaintiff No. 1 remained with the defendant—namely until August, 1923, and that no statements by plaintiff No. 1 during that period could be taken as proof that he had full knowledge of the facts. A decree was made for possession of the majority of the properties claimed with mesne profits. As to some which were claimed as being purchased out of the proceeds of transferred properties, the claim was rejected on the facts ; hence the cross-appeal.

1934. Feb. 15, 16, 19, 20, 22, 23. Dunne K.C. and Pringle for the defendant.

De Gruyther K.C. and Wallach for plaintiff No. 1.

The arguments proceeded chiefly upon the evidence. Reference was made for the defendant, on the insufficient pleading of undue influence to Abdool Hoosein Zenail Abadin v. Turner (( 1887) L. R. 14

I. A. 111.); Mahomed Buksh Khan v. Hosseini Bibi (( 1888) L. R. 15 I. A. 81.) ; Ismail Mussajee Mookerdum v. Hafiz Boo (( 1906) L. R. 33 I. A. 86.) ; and Order vr. 2, 4; and, on limitation of the suit, to Rani Janki Kunwar v. Raja A jit Singh (( 1887) L. R. 14 I. A. 148 ; and Raja Rajeswara Dorai Arunachellan Chettiar.(( 1913) I. L. R. 38 M. 321.) For plaintiff No. preference was made, on undue influence, to Moxon v. Payne (( 1877) L. R. 8 Ch. 851, 886.); Prem Narain Singh v. Parasram Singh (( 1877) L. R. 4 I. A. 101.) ; Farid-un-nisa v. Mukhtar Ahmad (( 1925) L. R. 52 I. A. 342.); and Tara Kumari v. Chandra Mauleshwar Prasad Singh (( 1931) L. R. 58 I. A. 450.) ; on the practice of the Judicial Committee as to pleadings to McLean v. McKay (( 1873) L. R. 5 P. C. 327.) ; on limitation, to Rahimbhoy Hubib-bhoy v. Turner (( 1892) L. R. 20 I. A. 1.); Nibaran Chand v. Nirupama Debi (( 1921) 26 C. W. N. 517.) ; Rangnath Sakharam v. Govind Narasinv (( 1904) I. L. R. 28 B, 639.) ; also to the Indian Limitation Act, 1908, s. 18.

March 21. The judgment of their Lordships was delivered by

LORD ALNESS the suit in the Court of the Subordinate Judge of Gonda out of which this appeal arises was brought by two plaintiffs (1.) Pandit Tirbhawan Dutt, and (2.) Thakur Jai indar Bahadur Singh, with whom the first plaintiff, before its institution, entered into an agreement, whereby the second plaintiff undertook to pay the costs of the suit, on the footing that he should receive half of the property recovered in the proceedings. The Chief Co