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Second Appeal No. 728 of 1957, decided on 12th May 1959.
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---‑Suit for cancellation of document executed by illiterate pardanashin on ground of fraud‑Onus of proving genuineness of contents lies on party relying on document‑Rule applies to poor, ignorant, illiterate woman though not pardanashin in strict sense.
In case of a document executed by an illiterate pardanashin lady the burden lies on those who seek to hold the lady to the terms of her deed to satisfy the Court on evidence that the deed was actually executed by her with full understanding of that she was about to do; that she had full knowledge of the nature and effect of the transaction into which she is said to have entered ; and that she had independent and disinterested advice in the matter.
The object of the rule of law, which is applicable to pardanashin ladies, is to protect the weak and helpless, and con sequently such a rule should not be restricted to that class only, but should apply to the case of a poor woman who is equally ignorant and illiterate though not a pardanashin in the strict sense of the term.
Farid‑un‑Nisa v. Mukhtar Ahmad and another 30 C W N 337 ; Nibaran Chundra Mukerji and another v. Nirupama 26 C W N 517; Chinta Dasya v. Bhalku Das 51 C L J 465 and Lala Kalyan Mal v. Ahmaduddin Khan 60 C L J 128 rel.
Simply because the Sub‑Registrar made certain enquiries from pardanashin executant of deed and asked her whether she had executed the particular deed to which she said that she affixed her thumb impression on it, would not lead to the con clusion that she had the idea of the nature of the deed she executed.
S. 100‑Finding of fact‑Arrived at by lower appellate Court without consideration of material on which trial Court had based its decision‑Not binding in Second Appeal.
Finding of fact by the first appellate Court without consideration of the material facts and circumstances on which the trial Court based its decision is not binding in second appeal.
A. H. Md. Ismail v. Sachidananda Bhattaeharjee 40 C W N 679 ; Sara Veeraswami alias Sara Veerraju v. Talluri Narayya and others A I R .1949 P C 32 : P L D 1948 P C 219 ; Sarju Pershal Ramdeo Sahu v. Jwalishwari Pratap Narain Singh and others A I R 1951 S C 120 and Watta or Thomas v. Thomas 1947 A C 484 ref.
Abdur Rab for Appellant.
Motilal Acharyya for Respondents.
This appeal is by the plaintiff. It arises out of a suit for declaration that the patta executed by the plaintiff in favour of defendants Nos. 1 and 2 dated 25th September, 1954, is void, inoperative and has not affected the title of the plaintiff.
2. Plaintiff's case, shortly stated, is as follows : She is a pardanashin lady, and inherited 1/9th share in the land recorded in Kharians Nos. 333, 354, 355, 356 and 324 of Mouza Banisanta as the only heir of her husband Sudhir Moral who died in 1345 B. S., after 11 years of his marriage with the plaintiff. Since then her co‑sharers like Bireswar alias Biswerswar and Fakir Chand have been in possession of her share who have delivered her share of the usufructs regularly ; but in the years 1359 and 1360 B. S., corresponding to 1952‑53 her co‑sharers did not deliver her share of produce of the land recorded in Khatians Nos. 354, 355 and 324, and her protest to her co‑sharers was answered by saying that the usufructs were given to her on account of the land of Khatians Nos. 353 and 356, and that was enough for her maintenance. In this predictment the plaintiff sought the help of defendant No. 3 whose son had been married with the daughter of one late Biraj Mondal, the younger brother of her deceased husband. Defendant No. 3 after making enquiries informed her that her name does not appear in the three Khatians, namely, Nos. 354, 355 and 324, and so nothing was possible without litigation. Defendant No. 3 also persuaded the plaintiff to execute a deed of gift in Falgoon, 1360 B. S., in respect of three jamas recorded in Khatians Nos. 324, 354 and 355 in favour of Sachindra, the minor son of late Biraj Mondal. But no arrangement was made in respect of realisation of the share of the usufructs from the land of the other two Khatians, namely, Khatians Nos. 353 and 356. In the month of Aswin following, namely, 1361 B. S., defendant No. 3 held out a promise to the plaintiff that he would be able to realise the same if she executes of Khamata Patra (power‑of‑attorney) in his favour. She agreed, and in pursuance of that object defendant No. 3 took her to Paikgach Registry Offce, and got a deed registered by her. Chandra Kanta Moral a bargadar of defendant No. 3 also accompanied the plaintiff and defendant No. 3 to the Sub‑Registry Office. In Poush, 1361 B. S., defendant No 3 asked Bireswar Mondal and other co‑sharers of the plaintiff to deliver her share of usufructs to him declaring that the plaintiff has given her share in settlement to him. The plaintiff got information of this assertion made by defendant No. 5 from her co‑sharers, and she met defendant No. 3 and made enquiries. His reply was suspicious. So, she persuaded her brother Banikanta to make enquiry, and in pursuance of this enquiry on the 9th Baisakh 1362 B. S., she came to know for the first time the contents of the document she had executed in favour of defendants Nos. I and 2. She stated that defendant No. 3 got the disputed patta executed by her by practising fraud upon her, and she had no knowledge of the contents of the document, and the document was not read over to her, and the statement made in the docu ment was false. It is also asserted by her that she had never been in need for the purpose of performing the Sradh ceremony of her husband or for the purpose of pilgrimage, and, above all, she is a pardanashin illiterate lady and simple village woman, and had no independent advice when she executed the document. She also categorically denied that she ever received any consideration money not to speak of the consideration money of Rs. 900 as stated in the document. She, therefore, prayed for declaring the document as void and inoperative.
3. The suit was contested by defendants Nos. 1 and 3. They pleaded none, maintainability of the suit as the plaintiff had not paid ad valorem court‑fee on the amount of the consideration money of the patta, and that, in reality, the suit is one for setting aside the patta and also on the ground that they being in possession since 1361 B. S., the plaintiff ought to have prayed for recovery of possession. But as it has not been done the suit is barred under section 42 of the Specific Relief Act. On merit their case is that Bireswar is a person of dangerous nature, and he never allowed the plaintiff to partake the share of the usufructs since after the death of her husband, and the plaintiff was forced to reside with her brother who is also a poor man. Thus, the plaintiff has been leading a miserable life financially for all these years ; that she sometimes visited her husband's ancestral home where she stayed for a few days with Bireswar, sometimes with Biraj Mondal and sometimes with Kantaram Mondal, but she never got the usufructs that, in the circumstances she being placed in unbearable financial plight she was on the lookout to transfer her land for consider ation, but none dared to come forward because of her co‑sharers who were dangerous persons ; that defendant No. 3 came forward through the intervention of one Bhuban Mondal to take the lease of the disputed land, and in fact took the lease on the 8th Aswin, 1361 B. S., and that the plaintiff executed the patta voluntarily in the presence of her brothers Banikanta and Chandra Kanta, and she accepted the consideration money by giving "barat" of the registration ticket in presence of Bhuban Mondal Chandra Kanta Gain and Chandra Kanta Moral. They denied that defendant No. 3 practised fraud upon the plaintiff, and got the patta executed by her in favour of defendants Nos. 1 and 2 in place of Khamata Patra. It is also alleged that the patta was read over to the plaintiff, and she knew about its contents. It is also alleged that the present suit has been falsely instituted at the instigation of Fakir Chand and Bireswar, co‑sharers of the plaintiff.
4. The trial Court decreed the suit holding on evidence that the plaintiff is an illiterate and simple village woman ; that at the time of execution of the document she had no near relative with her and no independent legal advice available to her by virtue of which she could understand the import of the transaction into which she was entering ; that there is no evidence that the docu ment was read over and explained to her ; and that there is absolutely no evidence that she received any consideration, and, as such, the document executed by her cannot be valid in law. In coming to this finding the trial Court held that the onus of proof that the plaintiff had actually meant to execute a patta and entered into the transaction being fully aware of it and with full knowledge of the contents and significance of it is upon the defendants, and they failed to establish this fact.
5. On appeal the learned Additional District Judge set aside the judgment and decree of the trial Court, and dismissed the suit of the plaintiff holding that the miserable plight of the plaintiff was the reason for which she had to receive money by granting the lease of the properties to the defendants and that
"The reason for executing the document Exhibit A according to the document itself is that she required money to pay debts to the creditors, and to pay for the expenses for the benefit of the soul of her husband and for going to pilgrimage. It is true that no evidence was adduced to prove that she required money for these purposes, but it is well known that in most of the docu ments of this nature imaginary purposes for raising money are recklessly noted in the deeds without any regard for truth. The learned Munsif seems to have overlooked the circumstances and probabilities which go against the plaintiff's story and he appears to have been led by sentiments only because the plaintiff is an uneducated village woman. If such a view be taken, then I am afraid most of the documents that are executed and registered by village women are to be regarded as null and void."
It appears from what has been quoted above as well as from the judgment of the learned Additional District Judge that was under the impression that the burden lies on the plaintiff to prove the case set up by her to the entire satisfaction of the Court. Hence this appeal by the plaintiff.
6. The learned Advocate for the appellant contends that the burden lies on the defendants to prove that the plaintiff executed the document of her own accord knowing fully the contents and purports of the fact and the nature of the document ; that the learned Additional District Judge illegally threw the burden on the plaintiff to prove her case of fraud, misrepresentation, want of knowledge of the nature, and effect of the transaction, and that the defendants got it executed by her in place of a Khamata Patra.
7. It is an established principle that in case of an illiterate pardanashin lady the onus is on the party who sets up and relies on a deed executed by pardanashin lady to satisfy the Court that it has been read over and explained to her and that it was understood by her. In the case of Farid‑Un‑Nisa v. Mukhtar Ahmad and another (30CWN337), their Lordships of the Privy Council held :
"Mere execution, though unaccompanied by duress, protest or obvious signs of misunderstanding or want of comprehension, is in itself no real proof of a true understanding mind in the execu tant. Evidence to establish such comprehension is most obviously found in proof that the deed was read over to the settler, and, where necessary, explained. The extent and character of the explanation required must depend on the circumstances. Length, intricacy the number and complexity of the dispositions or the unfamiliarity of the subject‑matter are all reasons for requiring an increased amount and efficiency of explanation . . . . Fraud, duress and actual undue influence are separate atters."
Their Lordships further observed as follows :
"It is a matter of obligation on the Judicial Committee to be strict and unwavering in defence of those strict rules which have been laid down for the protection of defenceless in India."
8. In the case of Nibaran Chandra Mukerji and another v. Nirupuma (26CWN517), it has been held that the Court must satisfy itself upon the evidence that the deed was actually executed by the pardanashin lady with full understanding of what she was about to do ; that she had full knowledge of the nature and effect of the transaction into which she is said to have entered, and that she had independent and disinterested advice in the matter. It has further been laid down in the same case that in class of cases where the person who seeks to hold the lady to the terms of her deed is one who stood towards her in fiduciary character. The Court will act with great caution and will presume confidence put and influence exerted, and in cases where the person who seeks to enforce the deed was an absolute stranger, the Court will require the confidence and influence to be proved intrinsically, and that the Court must have regard to the intellectual attainments of the lady concerned, and if she is proved to be of business habit, to be literate, and to have possessed a capacity to judge for herself, the Court will be disinclined to set aside such a deed.
9. Therefore, the main thing to be considered is whether the deed in question is different from the deed she intended to execute or not. If it is different from the deed she intended to execute, it is void and inoperative, and need not be avoided.
10. The definite case of the plaintiff is that she was taken to Paikgacha Registry Office by defendant No. 3 along with Chandra Kanta Moral, a bargadar of the defendant to execute a deed of Khamata Patra, and it is her case that she never intended to execute any patta in favour of defendants Nos. 1 and 2. It is not disputed that she is an illiterate village woman and a widow of 35 years of age. The trial Court also found that she is a pardanashin lady, but the lower Appellate Court found that the plaintiff was not a pardanashin woman, because, it is evident from the plaintiff's own witness P. W. 2 Chandra Kanta, according to whom the plaintiff used to go to his house often and used to move and talk to the village folks. I think the learned Additional District Judge is absolutely wrong in holding that the plaintiff does not come within the category of pardanashin woman. In the case of Chinta Dasya v. Bhalku Das (51CLJ465), it has been held as follows :
"The object of the rule of law, which is applicable to pardanashin ladies, is to protect the weak and‑helpless, and con sequently such a rule should not be restricted to that class only, A but should apply to the case of a poor woman who is equally ignorant and illiterate though not a pardanashin in the strict sense of the term."
Therefore, there is no doubt that the patta Exhibit A is executed by a village illiterate pardanashin lady.
11. According to the established principle, in case of a document executed by an illiterate pardanashin lady, the burden lies on those who seek to hold the lady to the terms of her deed to satisfy the Court on evidence that the deed was actually executed by her with full understanding of what she was about to do; that she had full knowledge of the nature and effect of the transaction into which she is said to have entered ; and that she had independent and disinterested advice in the matter. The trial Court found that the plaintiff failed to discharge that onus. The onus of proving that the plaintiff has actually meant to execute a patta, and entered into the transaction fully aware of it and with full knowledge of its contents and significance is upon the defendants. And the defendants have failed to establish this fact. But the lower appel late Court went out of the established principle of law. After commenting on the evidence of P. W. 2 Chandra Kanta Mondal who is said to have accompanied the plaintiff along with defendant No. 3, Digamber Mondal, and who is said to be the seasonal labourer of Digamber in 1361 B. S., the learned Additional District Judge observed :
"In cross‑examination he stated that the Sub‑Registrar made certain enquiry from him and from the plaintiff, and asked the plaintiff whether she had executed the particular document, and she axed her thumb impression on it. This indicates that the plaintiff had an idea about the nature of the document she executed, and the Sub‑Registrar might have explained to her what it was."
These are all wild and unauthorised presumption about the under standing of the plaintiff about the nature and effect of the document she was made to execute and register before the Sub‑Registrar's Office. Not only that, the learned Additional District Judge relied on the evidence of D. W. 1 Tarak Ghatak, a deed‑writer of Paikgacha Sub‑Registry Office who attested the patta, his evidence being that the patta was read over to the executant, in his presence, and it was written according to the instructions of the executant, and also on the evidence of D. W. 3 Bhudan Mondal who says that the negotiation of the lease was finalised in his house, and it was settled that the plaintiff would settle 81 bighas of land by a patty for Rs. 950, and has come to the conclusion that "this defence evidence in my opinion cannot be said to be unsatisfac tory." But at the same time the learned Additional District Judge has not adverted to the reasons given by the trial Court to dis believe the evidence of these witnesses. While dealing with the evidence of Tarak Ghatak the trial Court at page 11 of the Paper‑Book observed
"This person seems to remember every detail from the arrival of the plaintiff to the Registry Office to the end of registration. But the cat is out of the bag by one single statement. He stated that he does not know the name of the Mahajan (meaning defendant No. 3), and the Mahajan did not arrive at the Registry Office on the first day on which the plaintiff had to stay over night at Paikgacha. But P. W. 2 Digambar Mondal states that he was present on the day on which the plaintiff had to stay overnight. He has stated that he slept on Manmatha's khat, while Ayana and Chandra Kanta spent the night under a tin shed. This contradictory evidence shows that this deed‑writer does not remember anything connected with the execution of the patta, and has depended on his dexterity and intelligence to state certain facts which on theory should be done in the case of a document executed and presented for registration by woman. And so the statement cannot be relied upon when he states that the document was read over and explained to the plaintiff, and that the patta has been executed at the instructions of Ayana Dasi."
Further, the trial Court goes on to say
"Secondly, the contents of Exh. A would find that Ayana Dasi had not given any instructions at the time of the execution of the patta. It is stated in the patta that.
But there is no evidence that she needed any money for any such purpose as stated therein.
And lastly, the main defence case that the plaintiff had no means of maintaining herself finds no place among the reasons of transfer."
Then again at page 13 of the Paper Book the learned Munsif pointed out
"Then about payment of consideration D.W. 1 Digambar Mondal has alleged that one Chandra Kanta Gain, Chandra Kanta Mondal, Bhuban Mondal and the parties were present when con sideration to the extent of Rs. 950 was paid to Ayana Dasi. Ayana Dasi has denied this. Chandra Kanta Mondal has also denied this allegation. Chandra Kanta Gain has not been examined. And so only Bhuban Mondal remained. And he has been examined. He is P. W. 3. This witness has also alleged that he settled the terms of the lease on behalf of Digambar Mondal. This man is not a relative of Digambar. And there is no reason as to why he was chosen of all persons to negotiate on his behalf. And there is also no reason as to why he was specially called by Digambar to witness payment of consideration. There may be two reasons for that, either he is very intimate with Digambar, and has, therefore, come forward to help him or that he has been pro cured to perjure himself before the Court. The first person seems to be more probable, because it is found that he has deposed for Digambar in other litigations. Bhuban has admitted this. He has, however, stated that he deposed in the case of one Rai Moni, but states that he does not know as to whether Panchi Dasi alias Rasmoni wife of Naren, son of Digarnbar was a party. And hence the plaintiff has produced the certified copy of the judgment of a Misc. Case, Exh. 2. And Exh. 2‑A has been produced to show that Bhuban was convicted for forgery. Thus, Bhuban seems to be intimate with Digambar and his solitary corroboration cannot be accepted as positive."
12. As to the cause of transfer as stated in the document, even the learned Additional District Judge agreed with the observa tion of the trial Court, and he observed at page 28 of the Paper- Book as follows
"It is true that no evidence was adduced to prove that she required money for these purposes, but it is well-known that in most of the documents of this nature imaginary purposes for raising money are recklessly noted in the deeds without any regard for truth."
13. It is contended by Mr. Acharya for the respondents that the findings arrived at by the lower Appellate Court are findings of fact and cannot be disturbed in second appeal. I am unable to accept this contention for three reasons. Firstly, the finding of fact arrived at by the lower Appellate Court without considering or adverting to the reasons given by the trial Court for dis believing the set of witnesses is not such a finding of fact as to be binding on the High Court in second appeal. In support of this view, reference may be made to the case of A. H. Md. Ismail v. Sachidananda Bhattacharjee (40CWN769), where it has been held that a finding of fact by the first Appellate Court without consideration of the material facts and circumstances on which trial Court based its decision is not binding in second appeal. The second reason is that the learned Additional District Judge totally misconceived the burden of proof. From the judgment it appears that he was under the wrong impression that the plaintiff, a pardanashin lady, must prove her case by evidence to the satisfaction of the Court, and if she fails to do that she is not entitled to succeed. Further, he held that the principles of protection given to a pardanashin lady is not applicable to the present plaintiff as she moves about and talks with the village folks. The third reason is that if it depends upon the appreciation of the oral evidence in the case, the first Appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him, and in observing the manner in which they deposed in Court though this certainly does not mean that when the appeal lies on fact the Appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge ; but he must give cogent reasons for reversing those findings arrived at the trial Court on consider ation of the evidence on record. In support of this view reference may be made to the cases of Sara Veeraswami alias Sara Veerraju v. Talluri Narayya and others (AIR 1949PC32), Sarju Pershal Ramdeo Sahu v. Jwalishwari Pratap Narain Singh and others (A I R 1951 S C 120 (121)), and Watta or Thomas v. Thomas (1947 A C 484). In this view of the matter, I think the contention of the learned Advocate for the appellant is of sub stance. In support of his contention he has also referred to the case of Lala Kalyan Mal Receiver v. Ahmad Uddin Khan (60 C L J 128), where it has been held that in case of a document executed by pardanashin woman, it is not sufficient to show that the document was read out to her, it must further be proved that it was explained to her, and that she really understood the nature and effect of the transaction. The onus of proof is on the party seeking to enforce a document as against the pardanashin lady. Mr. Acharyya also refers to the evidence of D. W. 1 Garak Ehatak the deed‑writer at Paikgacha Sub‑Registry Office who attested the patta. He stated in his evidence that the patta was read over to the executant in his pre sence, and it was written according to the instructions of the executant. This witness for reasons given by the trial Court was disbelieved. Even his evidence does not show that though the document was read over to her she really understood the nature and effect of the transaction. Therefore, there is no doubt in my mind that the learned Additional District Judge is absolutely wrong in holding that simply because the Sub‑Registrar made certain enquiries from P. W. 2 and from the plaintiff, and asked her whether she had executed the particular document, and that she affixed her thumb impression on it, it would indicate that the plaintiff had the idea of the nature of the document she executed.
14. Mr. Acharyya, the learned Advocate for the respondents, also drew my attention to the observation of the trial Court at page 9 of the Paper‑Book to the effect that the defence contention was sound from the point of view of the circumstances and evidence and the probabilities of the case. This observation was undoubtedly made by the trial Court while dealing with the case of the defendants and the evidence led by them, and that was as to the probability of the case set up by the defendants in the circumstances.
15. As to the circumstances, namely, straitened circumstances under which the plaintiff is said to have transferred her property for money, these are all beside the point. The main thing in the case is to establish that the lady herself executed the document knowing what it is and the nature and effect of the same, the burden of proof of which lies on the defendants, and the learned Munsif definitely found that this onus the defendants failed to discharge.
16. The result, therefore, is that this appeal is allowed with costs, and the judgment and decree of the lower Appellate Court are set aside, and those of the trial Court restored.
17. Leave under Clause 15 of the Letters Patent prayed for is refused.
K. B. A.
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