PETITIONER: MST. KHARBUJA KUER Vs. RESPONDENT: JANGBAHADUR RAI DATE OF JUDGMENT: 09/04/1962 BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. SARKAR, A.K. MUDHOLKAR, J.R. CITATION: 1963 AIR 1203 1963 SCR Supl. (1) 456 CITATOR INFO : RF 1981 SC 707 (10) ACT: Pardanashin lady-Execution of deed-Binding mature-Burden of proof. HEADNOTE: R, the husband of the appellant, had separated from his uncle in 1924. After the death of R, J got a maintenance deed executed by the appellant containing recitals that there had been no separation between R. and.' J. The appellant filed a suit for a declaration of her title to the property and for a declaration that the deed having been got executed by fraud was not binding on her. The trial court decreed the suit holding that R and j had separated, that the appellant was an ignorant pardanashin lady and that she did not execute the deed after understanding the contents thereof. On appeal the first appellate court confirmed the findings and decree. in second appeal the High Court reversed the findings of facts on,the ground that the onus was on the appellant to prove that the deed had been got execute by fraud The appellant contended 457 High Court was wrong on the question of burden of proof and that it had no jurisdiction to interfere with the findings of facts. Held, that the High Court was not justified in interfering in second appeal with findings of fact of the first two Courts and it had wrongly placed the onus on the appellant. The burden of proof was always upon the person who sought to sustain a transaction entered into with a pardanashin lady to establish that the document was executed by her after clearly understanding the nature of the transaction. It had to be established not only that it was her physical act but also that it was her mental act. The burden could be discharged not only by proving that the document was explained to her and that she understood it, but also by other evidence, direct and circumstantial. Farid-Un-Nisa v. Mukhtar Ahmed, (1925) L. R. 52 I. A. 342, Geresh Chunder Lahoree, v. Mst Bhuggobutty Debia (1870) 13 M. I. A. 419, Kali Baksh v. Ram Gopal, (1913) 41 I. A. 23 and Jagadish Chandra v. Debnath, A. I. R. 1940 P. C. 134, referred to. JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 522 of 1959.
Appeal by special leave from the judgment and decree dated
December 2, 1957, of the Patna High Court in S. A. No. 791
of 1963.
D. P. Singh, for the appellant.
Sarjoo Prasad and K. P. Gupta, for the respondents.
1962. April 9. The Judgment of the Court was delivered by
SUBBA RAO, J.-This appeal by ,special leave is preferred
against the judgment of a single Judge of the Patna High
Court, The’ facts that gave rise to this appeal may be
briefly stated to appreciate the findings of the various
courts and the conten-
458
tions of the parties, the following genealogy will be
useful.
Ramlal Rai
|
————————————-
| | Jamuna Rai Jangbahadur Rai (D 1) Kasida Kuer (deceased) | | Rameshwar Rai (deceased) | | Mst. Kharbuja Kuer (Plff.) | | |
——————————————————-
| | | Jugeshar Rai Rambirchh Rai Mahessar Rai (D 2) (D 3) (D 4)
The case of the plaintiff, who is the widow of Rameshwar
Rai, is that her husband and Jangbahadur, defendant 1,
effected a partition of the family property in or about
1924, that after the partition he was in exclusive
possession of the property that fell to his share, that he
died in the year 1930, that thereafter she and her
mother-in-law continued to be in possession of the said
property,, that her mother-in-law died in 1938, that the
first defendant asked her and her mother-in-law to execute a
power of attorney in his favour, that they, being pardha-
nashin ladies, executed a document in his favour ‘on August
24, 1935, believing it to be a power of attorney, that
subsequently they came to know that it was a maintenance
deed containing false recitals to the effect that there was
no separation and that the property was joint family
property. They also alleged in the plaint that the, deed in
question was never read ‘out to them, that the scribe and
the attesting witnesses were partisans of the first defen-
dant. It was also alleged that the document was
459
always in the custody of the first defendant, that the
plaintiff and her mother-in-law, till the latter is death,
were getting the income from the property as they were
getting before the execution of the said document and that
they came to know of the fraud only in 1355 fasli, when the
first defendant began to interfere with the possession and
occupation of the property by the plaintiff and disclosed to
several people that she had only a right to maintenance and
thereafter when she got the document read over to her and
discovered the fraud. With those allegations, among others,
the plaintiff filed a suit in the Court of the Munsif,
Muzaffarpur, for the following reliefs:
“On a consideration of the aforesaid facts and
also on adjudicating the plaintiff’s title and
the absence of title of the defendants, it may
be adjudged by the court that the deed of
agreement for maintenance is altogether
fraudulent and not binding upon the
plaintiff.”
The relief claimed is rather involved, but in sub. stance it
is a relief for a declaration of the plaintiff’s title to
the suit property and for a declaration that the maintenance
deed, having been executed by fraud, was not binding on her.
The defendant denied the allegations contained in the plaint
and alleged that the deed of maintenance was read over and
explained to the plaintiff and her mother-in-law and that
one Babu Ramnath Singh, brother of the plaintiff, was
present at the time of the execution and affixed his
signature on behalf of the plaintiff. He denied that he had
committed any fraud. On the pleadings the following issues,
among others, were framed:
Issue No. 3-“Is the allegation of separation
between Rameshwar Rai and defendant
460
No. 1 in the month of Asardh 1334 Fs. (1927)
correct?”
Issue No. 4-“Is the document dated 24-8-1935
legal and valid? Was the same read over to
the plaintiff and the plaintiff executed it
with the full knowledge of the contents?”
Issue No. 5-“Are the plaintiffs entitled to
the reliefs claimed?”
It will be seen from the issues that the burden of proof to
establish separation was placed on the plaintiff and that to
prove that the document was read over to the plaintiff and
executed by her with full knowledge of the contents was laid
on the defendant.
On a consideration of the entire evidence., the learned
Munsif found on issues 3 and 4 that Rameshwar Rai died in
state of separation from Jangbahadur, that the plaintiff and
her mother-in-law were ignorant pardhanashin- ladies, that
the two ladies had full confidence in the 1st defendant, and
that the document, Ex. C. was not read over to the
plaintiff and she did not execute it after understanding the
contents thereof. On those findings the suit was decreed in
terms of the plaint prayer. On appeal, the learned
Subordinate Judge considered the entire evidence over again
and accepted the said two findings given by the learned
Munsif and confirmed the decree. But, on second appeal,
Imam, J., set aside the concurrent findings of the two
courts mainly on the ground that the courts had thrown the
burden of proof wrongly on the defendant. In the words of
the learned Judge, “it was the duty of the plaintiff to
prove that there was fraud committed and as that had not
been established the question whether the document had been
read over and explained to the plaintiff, in my opinion, in
the circumstances,
461
does not arise.” He considered the evidence from that
standpoint and held that the plaintiff had not established
her case; and on that finding, he dismissed the suit.
Mr. D. P. Singh, learned counsel for the appellant, raised
before us two contentions, namely, (1) the learned Judge of
the High Court was wrong on the question of burden of proof,
and (2) the learned Munsif and the learned Subordinate Judge
had not only thrown the burden of proof rightly on the
defendant, but they had also given their findings On the
entire evidence, and therefore the burden of proof became
immaterial and the findings of fact given by the said courts
were binding on the High Court under s. 100 of the Code of
Civil Procedure.
Mr. Sarjoo Prasad, learned counsel for the respondents, on
the other hands, contends that the finding on the question
of separation was halting and was clearly illegal, not
having been based on evidence, either oral or documentary,
and that though the initial burden to prove that the
document was read over and explained to the widow,% was on
the defendant, the evidence and the circumstances of the
case clearly discharged that burden.
It is settled law that the High Court has no jurisdiction to
entertain a second appeal on the ground of erroneous finding
of fact. In the instant case the learned Munsif and, on
appeal, the learned Subordinate Judge found concurrently
that the two widows put their thumb marks without
understanding the true import of the document. Imam, J., in
second appeal reversed the said findings on the ground that
they were vitiated by an erroneous view of the law in the
matter of burden of proof. The judgment, if we may say so
with respect, consists of propositions which appear to be
contradictory. The learned Judge, after reviewing the case
462
law on the subject, concludes his discussion by holding that
it was the duty of the plaintiff to prove that there was
fraud committed and that, as that had not been established,
the question whether the document was read over and
explained to the plaintiff, in his opinion, in the
circumstances, did not arise. This proposition, in our
view, is clearly wrong and is contrary to the principles
laid down by the Privy Council in a series of decisions. In
India pardahnashin ladies have been given a special
protection in view of the social conditions of the time,%;
they are presumed to have an imperfect knowledge of the
world, as by the pardah system, they are practically
excluded from social intercourse and communion with the
outside world. In Farid-Un-Nisa v. Mukhtar Ahmad (1), Lord
Sumner traces the origin of the custom and states the
principle on which the presumption is based. The learned
Lord observed:
“In this it has only given the special
development, which Indian social usages make
necessary, to the general rules of English
law, which protect persons, whose disabilities
make them dependent upon or subject them to
the influence of others, even though nothing
in the nature of deception or coercion may
have occurred. This is part of the law relat-
ing to personal capacity to make binding
transfers or settlements. of property of any
kind. ”
The learned Lord also points out:
“Of course fraud, duress and actual undue
influence are separate matters”.
it is, therefore, manifest that the rule
evolved for the protection of pardahnashin
ladies shall not be confused with other
doctrines, such as fraud, duress and actual
undue influence, which apply to all
(1) (1925) L.R. 52 I.A. 342, 350, 352.
463
persons whether they be pardanashin ladies or
not.
The next question is what is the scope and
extent of the protection. In Geresh Chunder
Lahoree v. Mst. Bhuggobutty Debia (1) the
Privy Council held that as regards documents
taken from pardanashin women the court has to
ascertain that the party executing them had
been a free agent and duly informed of what
she was about. The reason for the rule is
that the ordinary presumption that a person
understands the document to which he has
affixed his name does not apply in the case of
a pardanashin woman. In Kali Baksh v. Ram
Gopal (2), the Privy Council defined the scope
of the burden of a person who seeks to sustain
a document to which a pardanashin lady was a
party in the following words :
,,In the first place, the lady was a parda-
nashin lady, and the law throws round her a
special cloak of protection. It demands that
the burden of proof shall in such a case rest,
not with those who attack, but with those who
found upon the deed, and the proof must go so
far as to show affirmatively and conclusively
that the deed was not only executed by, but
was explained to, and was really understood by
the grantor. In such cases it must also, of
course, be established that the deed was not
signed under duress, but arose from the free
and independent will of the grant or”.
The view so broadly expressed, though affirmed
in essence in subsequent decisions, was
modified, to some extent, in regard to the
nature of the mode of discharging the said
burden. In Farid-Un-Nisa v. Mukhtar Ahmad
(a) it was stated :
“The mere declaration by the settlor,
(1) [1870] 13 M. I. A. 419, (2) [1913] 41 I.
A. 23,29,
(3) (1925) L.R. 52. I. A. 342, 350, 352.
464
subsequently made, that she had not under
stood what she was doing, obviously is not in
itself conclusive. It must be a question
whether, having regard to the proved
personality of the settlor, the nature of the
settlement, the circumstances under which it
was executed, and the whole history of the
parties, it is reasonably established that the
deed executed was the free and intelligent act
of the settler or not. If the answer is in
the affirmative, those relying on the deed
have discharged the onus which rests upon
them”.
While affirming the principle that the burden is upon the
person who seeks to sustain a document executed by a
pardanashin lady that she executed it with a true
understanding mind, it has been held that the proof of the
fact that it has been explained to her is not the only mode
of discharging the said burden, but the fact whether she
voluntarily executed the document or riot could be
ascertained from other evidence and circumstances in the
case. The same view was again reiterated by the Judicial
Committee, through Sir George Rankin, in Jagadish Chandra v.
Debnath (1). Further citation is unnecessary. The legal
position has been very well settled. Shortly it may be
stated thus : The burden of proof shall always rest upon the
person who seeks to sustain a transaction entered into with
a pardanashin lady to establish that the said document was
executed by her after clearly understanding the nature of
the transaction. It should be established that it was not
only her physical act but also her mental act. The burden
can be discharged not only by proving that the document was
explained to her and that she understood it, but also by
other evidence, direct and circumstantial.
If that be the law, a perusal of the judgments of the three
courts demonstrates that while the
(1) A.I.R. 1940 P.C. 134,
465
learned Munsif and the learned Subordinate Judge approached
the case from a correct perspective, the High Court misled
itself by a wrong approach. The relevant issue we have
already extracted shows that the burden was thrown upon the
defendant. The first two courts approached the evidence
from that standpoint and gave a concurrent finding that it
had not been established that the plaintiff executed the
document after understanding the nature of the transaction.
Apart from the burden of proof, also on the facts found they
came to the same conclusion. The High Court, having wrongly
held that the approach of the two courts was not correct and
having wrongly thrown the burden upon the plaintiff
considered the evidence afresh and set aside that finding.
As the two courts approached the evidence from a correct
perspective and gave a concurrent finding of fact, the High
Court had no jurisdiction to interfere with the said
finding.
Learned counsel for the respondents contends that on one of
the crucial findings which influenced the first two courts
in coming to the conclusion which they did, namely, the
finding on the partition in the family, was not based on
evidence and that, indeed, both the parties agreed that
question was irrelevant to the main question raised in the
suit. He further said that the learned Munsif, having
rightly held that the burden of proof to establish
separation was on the plaintiff and having held that there
was no acceptable oral evidence and that the documentary
evidence adduced was not sufficient to sustain partition,
should have found that the presumption under the Hindu law
was not rebutted. It is true that before the learned Munsif
the Advocates appearing for the parties contended that it
was not necessary to give any finding on issue No. 3 and
that the suit could be disposed of without giving any
finding thereon. But the learned Munsif rightly did not
accept the said suggestion and held that the issue bad been
framed on the
466
pleadings and that all the relevant evidence had been
adduced and that it was only proper to give a finding
thereon. The learned Subordinate Judge pointed out that the
main point for consideration was not the matter of jointness
or separation, but only the validity or genuineness of the
deed itself, and that “the question of separation or
jointness thus only becomes a link in the chain to judge the
validity or otherwise of the document, Ex. C”. This
statement of the learned Subordinate Judge is
unobjectionable. The question of partition in the family
was a circumstance which would have an important bearing on
the question of probability of the widows executing a
document admitting that there was no partition in the family
and that they bad no absolute interest in the said property.
Now coming to the evidence, we cannot accept the argument of
learned counsel for the respondents that there was no
evidence in the case to rebut the presumption of Hindu law
that a family is joint. The learned Munsif said that there
was no documentary evidence on behalf of the plaintiff to
prove separation; by that statement he meant that the
partition was not effected by a written document, for the
next sentence made it clear when he said that it was due to
the fact of alleged oral partition. Then he considered the
documents filed by the defendants in great detail and came
to the conclusion that the said documents were not
inconsistent with partition. Then he discussed the oral
evidence. He had considered the evidence of five witnesses
examined on behalf of the plaintiff and of seven witnesses
examined on behalf of the defendants. He also noticed
pieces of circumstantial evidence. After considering the
entire evidence, oral, documentary and circumstantial, he
came to the following conclusion :
“Although he oral evidence on both the sides
on the point of jointness and separation
467
is not satisfactory but from the circumstances
adduced from the facts of the case I am
convinced that Remeshwar died in states of
separation from Jangbahadur.”
It cannot be said from the said finding that
he rejected the oral evidence. It may be that
the oral evidence adduced on behalf of the
plaintiff was not as satisfactory as it should
be, but he preferred that evidence, which
supported partition, in view of the
circumstances found on the evidence. The
finding, whether it is correct or not, is
certainly a finding of fact and it cannot be
said that it is not based on evidence.
Now coming to the appellate court, the learned
Subordinate Judge reviewed the entire
evidence, oral, documentary and
circumstantial, and arrived at the following
findings:
“In view of the facts and the circumstance
narrated above, while the probabilities are
that there was a disruption in the joint
family of Rameshwar and Jangbahadur as alleged
by the plaintiff, the defendants have failed
to prove beyond all doubts that the family
continued to be joint at the time of
Rameshwar’s death, or that they came in
exclusive possession of the properties left
behind by him. Judging Ex. C, in this light,
we find that if the fact of separation between
Rameshwar and Jangbahdur as alleged by the
plaintiff, be accepted to be true, as has been
shown above, then the fraud in the execution
of this document is patent, and no discussion
is required to declare it as a forged and
fradulent document.”
It is true the finding could have been more explicit, but
that does not detract from its finality. In the first part
of the finding, the learned Subordinate Judge says in effect
that, having regard to the facts and circumstances he had
discussed earlier the
468
burden shifted to the first defendant, who did not adduce
acceptable evidence to dislodge the circumstances against
jointness. But in the second part of the finding he makes
it clear that be had found that there was partition in the
family. The finding is again a finding of fact. That a
part, the High Court did not in any way question the
correctness of the finding of the learned Munsif and the
learned Subordinate Judge, but only ignored it on the ground
that it was not the duty of the lower appellate court to
deal with that question at all. We cannot appreciate the
observations of the learned Judge of the High Court, for, in
our view, that finding, as the learned Munsif pointed out,
arose on the pleadings and, as the lower appellate court
pointed out, had a direct impact on the main question to be
decided in the case. We, therefore, hold that the said
finding was binding upon the High Court.
Even if that finding was ignored, there was sufficient
material to sustain the finding of the first two courts.
Both the courts found that the first defendant, on whom the
burden lay, not only did not establish that it was executed
by the plaintiff with the knowledge of its contents, but
that even apart from the burden of proof, that they also
found that the plaintiff and her mother-in-law put their
thumb marks on the document under the impression that it was
a power of attorney. The finding is one of fact and was
based upon the following relevant facts : (1) The plaintiff
and her mother-in-law were pardanashin and illiterate women-
one of them was old and the other was middle-aged. (2) They
had full confidence in the first defendant. (3) Babu Ramnath
Singh, who wrote the names on the document was not proved to
be the brother of the plaintiff. (4) The document was in the
custody of the defendant. (5) The plaintiff and her mother-
in-law were in enjoyment of the property as they were
enjoying it even
469
before the execution of the document. (6) The defendant had
not examined either Babu Ramnath Singh or other important
witnesses who could have proved the fact that the plaintiff
and her mother-in-law had the knowledge of the nature of the
document. (7) The defendant managed to get this document by
fraud to facilitate mutation of the property in his name.
And (8) the plaintiff gave acceptable evidence in support of
her case. The finding of the both the courts is supported
by evidence, and there is no permissible ground for
interference with it in second appeal.
For the aforesaid reasons, we find that the learned Judge of
the High Court had erroneously interferred with the
concurrent findings of fact arrived at by the first two
courts. In the result, we allow the appeal, set aside the
decree of the High Court and decree the suit with costs
throughout.
Appeal allowed.