{"id":135285,"date":"1962-04-09T00:00:00","date_gmt":"1962-04-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mst-kharbuja-kuer-vs-jangbahadur-rai-on-9-april-1962"},"modified":"2015-01-28T04:46:22","modified_gmt":"2015-01-27T23:16:22","slug":"mst-kharbuja-kuer-vs-jangbahadur-rai-on-9-april-1962","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mst-kharbuja-kuer-vs-jangbahadur-rai-on-9-april-1962","title":{"rendered":"Mst. Kharbuja Kuer vs Jangbahadur Rai on 9 April, 1962"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mst. Kharbuja Kuer vs Jangbahadur Rai on 9 April, 1962<\/div>\n
Equivalent citations: 1963 AIR 1203, \t\t 1963 SCR Supl. (1) 456<\/div>\n
Author: K Subbarao<\/div>\n
Bench: Subbarao, K.<\/div>\n
           PETITIONER:\nMST.  KHARBUJA KUER\n\n\tVs.\n\nRESPONDENT:\nJANGBAHADUR RAI\n\nDATE OF JUDGMENT:\n09\/04\/1962\n\nBENCH:\nSUBBARAO, K.\nBENCH:\nSUBBARAO, K.\nSARKAR, A.K.\nMUDHOLKAR, J.R.\n\nCITATION:\n 1963 AIR 1203\t\t  1963 SCR  Supl. (1) 456\n CITATOR INFO :\n RF\t    1981 SC 707\t (10)\n\n\nACT:\nPardanashin lady-Execution of deed-Binding mature-Burden  of\nproof.\n\n\n\nHEADNOTE:\nR,  the\t husband of the appellant, had\tseparated  from\t his\nuncle  in 1924.\t After the death of R, J got  a\t maintenance\ndeed  executed\tby the appellant  containing  recitals\tthat\nthere  had  been  no  separation between  R.  and.'  J.\t The\nappellant filed a suit for a declaration of her title to the\nproperty and for a declaration that the deed having been got\nexecuted  by fraud was not binding on her.  The trial  court\ndecreed\t the suit holding that R and j had  separated,\tthat\nthe appellant was an ignorant pardanashin lady and that\t she\ndid  not execute the deed after understanding  the  contents\nthereof.  On appeal the first appellate court confirmed\t the\nfindings  and  decree.\tin  second  appeal  the\t High  Court\nreversed  the findings of facts on,the ground that the\tonus\nwas  on\t the appellant to prove that the deed had  been\t got\nexecute by fraud The appellant contended\n457\nHigh Court was wrong on the question of burden of proof\t and\nthat  it had no jurisdiction to interfere with the  findings\nof facts.\nHeld,  that the High Court was not justified in\t interfering\nin  second  appeal with findings of fact of  the  first\t two\nCourts and it had wrongly placed the onus on the  appellant.\nThe burden of proof was always upon the person who sought to\nsustain\t a transaction entered into with a pardanashin\tlady\nto  establish  that the document was executed by  her  after\nclearly understanding the nature of the transaction.  It had\nto be established not only that it was her physical act\t but\nalso  that  it\twas her mental act.   The  burden  could  be\ndischarged  not\t only  by  proving  that  the  document\t was\nexplained  to  her and that she understood it, but  also  by\nother evidence, direct and circumstantial.\nFarid-Un-Nisa v. Mukhtar Ahmed, (1925) L. R. 52\t  I. A. 342,\nGeresh\tChunder Lahoree, v. Mst Bhuggobutty Debia (1870)  13\nM.  I. A. 419, Kali Baksh v. Ram Gopal, (1913) 41 I.  A.  23\nand  Jagadish Chandra v. Debnath, A. I. R. 1940 P.  C.\t134,\nreferred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 522 of 1959.
\nAppeal\tby special leave from the judgment and decree  dated
\nDecember  2, 1957, of the Patna High Court in S. A. No.\t 791
\nof 1963.\n<\/p>\n
D. P. Singh, for the appellant.\n<\/p>\n
Sarjoo Prasad and K. P. Gupta, for the respondents.
\n1962.  April 9. The Judgment of the Court was delivered by
\nSUBBA  RAO,  J.-This appeal by ,special leave  is  preferred
\nagainst\t the  judgment of a single Judge of the\t Patna\tHigh
\nCourt,\tThe’  facts  that gave rise to this  appeal  may  be
\nbriefly\t stated to appreciate\tthe findings of the  various
\ncourts and the conten-\n<\/p>\n
458<\/span><\/p>\n
tions  of  the\tparties, the  following\t genealogy  will  be
\nuseful.\n<\/p>\n
\t\t    Ramlal Rai
\n\t\t\t|\n<\/p>\n
   ————————————-\n<\/p>\n
   |\t\t\t\t       |\nJamuna Rai\t\t\tJangbahadur Rai\n\t\t\t\t    (D 1)\nKasida Kuer (deceased)\t\t       |\n\t\t\t\t       |\nRameshwar Rai (deceased)\t       |\n\t\t\t\t       |\nMst. Kharbuja Kuer (Plff.)\t       |\n\t\t\t\t       |\n\t\t\t\t       |\n<\/pre>\n
——————————————————-\n<\/p>\n
|\t\t\t  |\t\t\t       |\nJugeshar Rai\t    Rambirchh Rai\t       Mahessar Rai\n(D 2)\t\t\t(D 3)\t\t\t (D 4)\n<\/pre>\n
The  case  of the plaintiff, who is the widow  of  Rameshwar
\nRai,  is  that\ther husband and\t Jangbahadur,  defendant  1,
\neffected  a  partition of the family property  in  or  about
\n1924,\tthat  after  the  partition  he\t was  in   exclusive
\npossession  of the property that fell to his share, that  he
\ndied  in  the  year  1930,  that  thereafter  she  and\t her
\nmother-in-law  continued  to be in possession  of  the\tsaid
\nproperty,,  that  her mother-in-law died in 1938,  that\t the
\nfirst defendant asked her and her mother-in-law to execute a
\npower  of attorney in his favour, that they,  being  pardha-
\nnashin ladies, executed a document in his favour ‘on  August
\n24,  1935,  believing  it to be a power\t of  attorney,\tthat
\nsubsequently  they  came to know that it was  a\t maintenance
\ndeed containing false recitals to the effect that there\t was
\nno  separation\tand  that  the\tproperty  was  joint  family
\nproperty.  They also alleged in the plaint that the, deed in
\nquestion  was never read ‘out to them, that the\t scribe\t and
\nthe  attesting witnesses were partisans of the first  defen-
\ndant.  It was also alleged that the document was
\n459<\/span>
\nalways\tin  the\t custody of the first  defendant,  that\t the
\nplaintiff  and her mother-in-law, till the latter is  death,
\nwere  getting  the  income from the property  as  they\twere
\ngetting\t before the execution of the said document and\tthat
\nthey came to know of the fraud only in 1355 fasli, when\t the
\nfirst  defendant began to interfere with the possession\t and
\noccupation of the property by the plaintiff and disclosed to
\nseveral people that she had only a right to maintenance\t and
\nthereafter  when she got the document read over to  her\t and
\ndiscovered the fraud.  With those allegations, among others,
\nthe  plaintiff\tfiled  a suit in the Court  of\tthe  Munsif,
\nMuzaffarpur, for the following reliefs:\n<\/p>\n
\t      “On a consideration of the aforesaid facts and
\n\t      also on adjudicating the plaintiff’s title and
\n\t      the absence of title of the defendants, it may
\n\t      be  adjudged  by the court that  the  deed  of
\n\t      agreement\t  for  maintenance   is\t  altogether
\n\t      fraudulent   and\t not   binding\t upon\t the
\n\t      plaintiff.”\n<\/p><\/blockquote>\n
The relief claimed is rather involved, but in sub. stance it
\nis  a relief for a declaration of the plaintiff’s  title  to
\nthe suit property and for a declaration that the maintenance
\ndeed, having been executed by fraud, was not binding on her.
\nThe defendant denied the allegations contained in the plaint
\nand  alleged that the deed of maintenance was read over\t and
\nexplained  to the plaintiff and her mother-in-law  and\tthat
\none  Babu  Ramnath  Singh, brother  of\tthe  plaintiff,\t was
\npresent\t at  the  time\tof the\texecution  and\taffixed\t his
\nsignature on behalf of the plaintiff.  He denied that he had
\ncommitted any fraud.  On the pleadings the following issues,
\namong others, were framed:\n<\/p>\n
\t      Issue  No. 3-“Is the allegation of  separation
\n\t      between Rameshwar Rai and defendant
\n\t      460<\/span>
\n\t      No.  1 in the month of Asardh 1334 Fs.  (1927)
\n\t      correct?”\n<\/p><\/blockquote>\n
\t      Issue  No. 4-“Is the document dated  24-8-1935
\n\t      legal  and valid?\t Was the same read  over  to
\n\t      the  plaintiff and the plaintiff\texecuted  it
\n\t      with the full knowledge of the contents?”
\n\t      Issue  No. 5-“Are the plaintiffs\tentitled  to
\n\t      the reliefs claimed?”\n<\/p><\/blockquote>\n
It will be seen from the issues that the burden of proof  to
\nestablish separation was placed on the plaintiff and that to
\nprove  that the document was read over to the plaintiff\t and
\nexecuted by her with full knowledge of the contents was laid
\non the defendant.\n<\/p>\n
On  a  consideration of the entire  evidence.,\tthe  learned
\nMunsif\tfound on issues 3 and 4 that Rameshwar Rai  died  in
\nstate of separation from Jangbahadur, that the plaintiff and
\nher  mother-in-law were ignorant pardhanashin- ladies,\tthat
\nthe two ladies had full confidence in the 1st defendant, and
\nthat  the  document,  Ex.   C. was  not\t read  over  to\t the
\nplaintiff and she did not execute it after understanding the
\ncontents thereof.  On those findings the suit was decreed in
\nterms  of  the\tplaint\tprayer.\t  On  appeal,  the   learned
\nSubordinate Judge considered the entire evidence over  again
\nand  accepted  the said two findings given  by\tthe  learned
\nMunsif\tand  confirmed the decree.  But, on  second  appeal,
\nImam,  J.,  set\t aside the concurrent findings\tof  the\t two
\ncourts\tmainly on the ground that the courts had thrown\t the
\nburden\tof proof wrongly on the defendant.  In the words  of
\nthe  learned  Judge, “it was the duty of  the  plaintiff  to
\nprove  that  there was fraud committed and as that  had\t not
\nbeen established the question whether the document had\tbeen
\nread over and explained to the plaintiff, in my opinion,  in
\nthe circumstances,
\n461<\/span>
\ndoes  not  arise.”  He considered  the\tevidence  from\tthat
\nstandpoint  and held that the plaintiff had not\t established
\nher case; and on that finding, he dismissed the suit.
\nMr.  D. P. Singh, learned counsel for the appellant,  raised
\nbefore us two contentions, namely, (1) the learned Judge  of
\nthe High Court was wrong on the question of burden of proof,
\nand (2) the learned Munsif and the learned Subordinate Judge
\nhad  not  only\tthrown the burden of proof  rightly  on\t the
\ndefendant,  but\t they had also given their findings  On\t the
\nentire\tevidence, and therefore the burden of  proof  became
\nimmaterial and the findings of fact given by the said courts
\nwere binding on the High Court under s. 100  of the Code  of
\nCivil Procedure.\n<\/p>\n
Mr.  Sarjoo Prasad, learned counsel for the respondents,  on
\nthe  other hands, contends that the finding on the  question
\nof  separation\twas  halting and was  clearly  illegal,\t not
\nhaving\tbeen based on evidence, either oral or\tdocumentary,
\nand  that  though  the\tinitial burden\tto  prove  that\t the
\ndocument  was read over and explained to the widow,% was  on
\nthe  defendant,\t the evidence and the circumstances  of\t the
\ncase clearly discharged that burden.\n<\/p>\n
It is settled law that the High Court has no jurisdiction to
\nentertain a second appeal on the ground of erroneous finding
\nof  fact.   In the instant case the learned Munsif  and,  on
\nappeal,\t the  learned Subordinate Judge\t found\tconcurrently
\nthat   the  two\t widows\t put  their  thumb   marks   without
\nunderstanding the true import of the document.\tImam, J., in
\nsecond appeal reversed the said findings on the ground\tthat
\nthey  were vitiated by an erroneous view of the law  in\t the
\nmatter\tof burden of proof.  The judgment, if we may say  so
\nwith  respect, consists of propositions which appear  to  be
\ncontradictory.\tThe learned Judge, after reviewing the case
\n462<\/span>
\nlaw on the subject, concludes his discussion by holding that
\nit  was\t the duty of the plaintiff to prove that  there\t was
\nfraud committed and that, as that had not been\testablished,
\nthe  question  whether\tthe  document  was  read  over\t and
\nexplained   to\tthe  plaintiff,\t in  his  opinion,  in\t the
\ncircumstances,\tdid  not arise.\t This  proposition,  in\t our
\nview,  is  clearly wrong and is contrary to  the  principles
\nlaid down by the Privy Council in a series of decisions.  In
\nIndia\tpardahnashin  ladies  have  been  given\t a   special
\nprotection  in view of the social conditions of the  time,%;
\nthey  are  presumed to have an imperfect  knowledge  of\t the
\nworld,\tas  by\tthe  pardah  system,  they  are\t practically
\nexcluded  from\tsocial intercourse and\tcommunion  with\t the
\noutside world.\tIn Farid-Un-Nisa v. Mukhtar Ahmad (1),\tLord
\nSumner\ttraces\tthe  origin of the  custom  and\t states\t the
\nprinciple  on which the presumption is based.\tThe  learned
\nLord observed:\n<\/p>\n
\t      “In  this\t it  has  only\tgiven  the   special
\n\t      development,  which Indian social usages\tmake
\n\t      necessary,  to  the general rules\t of  English
\n\t      law, which protect persons, whose disabilities
\n\t      make  them dependent upon or subject  them  to
\n\t      the  influence of others, even though  nothing
\n\t      in  the  nature of deception or  coercion\t may
\n\t      have occurred.  This is part of the law relat-
\n\t      ing  to  personal\t capacity  to  make  binding
\n\t      transfers\t or settlements. of property of\t any
\n\t      kind.  ”\n<\/p><\/blockquote>\n
\t      The learned Lord also points out:
\n\t      “Of  course  fraud, duress  and  actual  undue
\n\t\t\t    influence are separate matters”.
\n\t      it  is,  therefore,  manifest  that  the\trule
\n\t      evolved  for  the protection  of\tpardahnashin
\n\t      ladies  shall  not  be  confused\twith   other
\n\t      doctrines,  such as fraud, duress\t and  actual
\n\t      undue influence, which apply to all
\n\t      (1)   (1925) L.R. 52 I.A. 342, 350, 352.\n<\/p><\/blockquote>\n
\t      463<\/span><\/p>\n
\t      persons whether they be pardanashin ladies  or
\n\t      not.\n<\/p><\/blockquote>\n
\t      The  next\t question is what is the  scope\t and
\n\t      extent  of the protection.  In Geresh  Chunder
\n\t      Lahoree  v.  Mst.\t Bhuggobutty Debia  (1)\t the
\n\t      Privy  Council held that as regards  documents
\n\t      taken from pardanashin women the court has  to
\n\t      ascertain\t that the party executing  them\t had
\n\t      been  a free agent and duly informed  of\twhat
\n\t      she  was\tabout.\tThe reason for the  rule  is
\n\t      that  the ordinary presumption that  a  person
\n\t      understands  the\tdocument  to  which  he\t has
\n\t      affixed his name does not apply in the case of
\n\t      a\t pardanashin  woman.  In Kali Baksh  v.\t Ram
\n\t      Gopal (2), the Privy Council defined the scope
\n\t      of the burden of a person who seeks to sustain
\n\t      a\t document to which a pardanashin lady was  a
\n\t      party in the following words :\n<\/p><\/blockquote>\n
\t      ,,In  the first place, the lady was  a  parda-
\n\t      nashin  lady, and the law throws round  her  a
\n\t      special cloak of protection.  It demands\tthat
\n\t      the burden of proof shall in such a case rest,
\n\t      not with those who attack, but with those\t who
\n\t      found upon the deed, and the proof must go  so
\n\t      far as to show affirmatively and\tconclusively
\n\t      that  the deed was not only executed  by,\t but
\n\t      was explained to, and was really understood by
\n\t      the  grantor.  In such cases it must also,  of
\n\t      course,  be established that the deed was\t not
\n\t      signed  under duress, but arose from the\tfree
\n\t      and independent will of the grant or”.
\n\t      The view so broadly expressed, though affirmed
\n\t      in   essence  in\tsubsequent  decisions,\t was
\n\t      modified,\t to  some extent, in regard  to\t the
\n\t      nature  of  the mode of discharging  the\tsaid
\n\t      burden.  In Farid-Un-Nisa v.   Mukhtar   Ahmad\n<\/p><\/blockquote>\n
\t      (a) it was stated :\n<\/p><\/blockquote>\n
\t      “The mere declaration by the settlor,
\n\t      (1) [1870] 13 M. I. A. 419,  (2) [1913] 41  I.
\n\t      A. 23,29,
\n\t      (3) (1925) L.R. 52.  I. A. 342, 350, 352.\n<\/p><\/blockquote>\n
\t      464<\/span><\/p>\n
\t      subsequently  made,  that she  had  not  under
\n\t      stood what she was doing, obviously is not  in
\n\t      itself  conclusive.  It  must  be\t a  question
\n\t      whether,\t having\t  regard   to\tthe   proved
\n\t      personality of the settlor, the nature of\t the
\n\t      settlement,  the circumstances under which  it
\n\t      was  executed,  and the whole history  of\t the
\n\t      parties, it is reasonably established that the
\n\t      deed executed was the free and intelligent act
\n\t      of  the settler or not.  If the answer  is  in
\n\t      the  affirmative,\t those relying on  the\tdeed
\n\t      have  discharged\tthe onus  which\t rests\tupon
\n\t      them”.\n<\/p><\/blockquote>\n
While  affirming the principle that the burden is  upon\t the
\nperson\twho  seeks  to\tsustain a  document  executed  by  a
\npardanashin   lady  that  she  executed\t it  with   a\ttrue
\nunderstanding  mind, it has been held that the proof of\t the
\nfact that it has been explained to her is not the only\tmode
\nof  discharging\t the said burden, but the fact\twhether\t she
\nvoluntarily   executed\tthe  document  or  riot\t  could\t  be
\nascertained  from  other evidence and circumstances  in\t the
\ncase.\tThe same view was again reiterated by  the  Judicial
\nCommittee, through Sir George Rankin, in Jagadish Chandra v.
\nDebnath\t (1).  Further citation is unnecessary.\t  The  legal
\nposition  has  been very well settled.\tShortly\t it  may  be
\nstated thus : The burden of proof shall always rest upon the
\nperson who seeks to sustain a transaction entered into\twith
\na  pardanashin lady to establish that the said document\t was
\nexecuted  by her after clearly understanding the  nature  of
\nthe  transaction.  It should be established that it was\t not
\nonly  her physical act but also her mental act.\t The  burden
\ncan be discharged not only by proving that the document\t was
\nexplained  to  her and that she understood it, but  also  by
\nother evidence, direct and circumstantial.
\nIf that be the law, a perusal of the judgments of the  three
\ncourts demonstrates that while the
\n(1)  A.I.R. 1940 P.C. 134,
\n 465<\/span>
\nlearned Munsif and the learned Subordinate Judge  approached
\nthe  case from a correct perspective, the High Court  misled
\nitself\tby  a wrong approach.  The relevant  issue  we\thave
\nalready extracted shows that the burden was thrown upon\t the
\ndefendant.   The  first two courts approached  the  evidence
\nfrom  that standpoint and gave a concurrent finding that  it
\nhad  not  been established that the plaintiff  executed\t the
\ndocument after understanding the nature of the\ttransaction.
\nApart from the burden of proof, also on the facts found they
\ncame to the same conclusion.  The High Court, having wrongly
\nheld that the approach of the two courts was not correct and
\nhaving\t wrongly  thrown  the  burden  upon  the   plaintiff
\nconsidered  the evidence afresh and set aside that  finding.
\nAs  the\t two courts approached the evidence from  a  correct
\nperspective and gave a concurrent finding of fact, the\tHigh
\nCourt  had  no\tjurisdiction  to  interfere  with  the\tsaid
\nfinding.\n<\/p>\n
Learned counsel for the respondents contends that on one  of
\nthe  crucial findings which influenced the first two  courts
\nin  coming  to the conclusion which they  did,\tnamely,\t the
\nfinding\t on  the partition in the family, was not  based  on
\nevidence  and  that, indeed, both the  parties\tagreed\tthat
\nquestion  was irrelevant to the main question raised in\t the
\nsuit.\tHe  further  said that the  learned  Munsif,  having
\nrightly\t  held\tthat  the  burden  of  proof  to   establish
\nseparation  was on the plaintiff and having held that  there
\nwas  no\t acceptable oral evidence and that  the\t documentary
\nevidence  adduced was not sufficient to\t sustain  partition,
\nshould\thave found that the presumption under the Hindu\t law
\nwas not rebutted.  It is true that before the learned Munsif
\nthe  Advocates appearing for the parties contended  that  it
\nwas  not  necessary to give any finding on issue No.  3\t and
\nthat  the  suit\t could be disposed  of\twithout\t giving\t any
\nfinding\t thereon.   But the learned Munsif rightly  did\t not
\naccept the said suggestion and held that the issue bad\tbeen
\nframed on the
\n466<\/span>
\npleadings  and\tthat  all the  relevant\t evidence  had\tbeen
\nadduced\t and  that  it was only proper\tto  give  a  finding
\nthereon.  The learned Subordinate Judge pointed out that the
\nmain point for consideration was not the matter of jointness
\nor  separation, but only the validity or genuineness of\t the
\ndeed  itself,  and  that  “the\tquestion  of  separation  or
\njointness thus only becomes a link in the chain to judge the
\nvalidity  or  otherwise\t of the\t document,  Ex.\t  C”.\tThis
\nstatement    of\t  the\tlearned\t  Subordinate\t Judge\t  is
\nunobjectionable.   The question of partition in\t the  family
\nwas a circumstance which would have an important bearing  on
\nthe  question  of  probability of  the\twidows\texecuting  a
\ndocument admitting that there was no partition in the family
\nand that they bad no absolute interest in the said property.
\nNow coming to the evidence, we cannot accept the argument of
\nlearned\t counsel  for  the respondents\tthat  there  was  no
\nevidence  in the case to rebut the presumption of Hindu\t law
\nthat a family is joint.\t The learned Munsif said that  there
\nwas  no documentary evidence on behalf of the  plaintiff  to
\nprove  separation;  by\tthat statement\the  meant  that\t the
\npartition  was not effected by a written document,  for\t the
\nnext sentence made it clear when he said that it was due  to
\nthe fact of alleged oral partition.  Then he considered\t the
\ndocuments  filed by the defendants in great detail and\tcame
\nto   the  conclusion  that  the\t said  documents  were\t not
\ninconsistent  with  partition.\tThen he discussed  the\toral
\nevidence.  He had considered the evidence of five  witnesses
\nexamined  on behalf of the plaintiff and of seven  witnesses
\nexamined  on  behalf  of the defendants.   He  also  noticed
\npieces\tof circumstantial evidence.  After  considering\t the
\nentire\tevidence, oral, documentary and\t circumstantial,  he
\ncame to the following conclusion :\n<\/p>\n
\t      “Although\t he oral evidence on both the  sides
\n\t      on the point of jointness and separation
\n\t\t\t\t   467<\/span>
\n\t      is not satisfactory but from the circumstances
\n\t      adduced  from  the  facts of  the\t case  I  am
\n\t      convinced\t that  Remeshwar died in  states  of
\n\t      separation from Jangbahadur.”
\n\t      It  cannot be said from the said finding\tthat
\n\t      he rejected the oral evidence.  It may be that
\n\t      the  oral\t evidence adduced on behalf  of\t the
\n\t      plaintiff was not as satisfactory as it should
\n\t      be,  but\the preferred  that  evidence,  which
\n\t      supported\t  partition,   in   view   of\t the
\n\t      circumstances  found  on\tthe  evidence.\t The
\n\t      finding,\twhether\t it is correct\tor  not,  is
\n\t      certainly\t a finding of fact and it cannot  be
\n\t      said that it is not based on evidence.
\n\t      Now coming to the appellate court, the learned
\n\t      Subordinate   Judge   reviewed   the    entire
\n\t      evidence,\t     oral,\tdocumentary\t and
\n\t      circumstantial,  and arrived at the  following
\n\t      findings:\n<\/p><\/blockquote>\n
\t      “In  view\t of the facts and  the\tcircumstance
\n\t      narrated\tabove, while the  probabilities\t are
\n\t      that  there  was\ta disruption  in  the  joint
\n\t      family of Rameshwar and Jangbahadur as alleged
\n\t      by  the plaintiff, the defendants have  failed
\n\t      to  prove\t beyond all doubts that\t the  family
\n\t      continued\t  to  be  joint\t at  the   time\t  of
\n\t      Rameshwar’s  death,  or  that  they  came\t  in
\n\t      exclusive\t possession of the  properties\tleft
\n\t      behind by him.  Judging Ex.  C, in this light,
\n\t      we find that if the fact of separation between
\n\t      Rameshwar\t and  Jangbahdur as alleged  by\t the
\n\t      plaintiff, be accepted to be true, as has been
\n\t      shown  above, then the fraud in the  execution
\n\t      of this document is patent, and no  discussion
\n\t      is  required  to declare it as  a\t forged\t and
\n\t      fradulent document.”\n<\/p><\/blockquote>\n
It  is true the finding could have been more  explicit,\t but
\nthat does not detract from its finality.  In the first\tpart
\nof the finding, the learned Subordinate Judge says in effect
\nthat,  having regard to the facts and circumstances  he\t had
\ndiscussed earlier the
\n468<\/span>
\nburden\tshifted to the first defendant, who did\t not  adduce
\nacceptable  evidence to dislodge the  circumstances  against
\njointness.   But in the second part of the finding he  makes
\nit  clear that be had found that there was partition in\t the
\nfamily.\t  The  finding is again a finding of fact.   That  a
\npart,  the  High  Court\t did not in  any  way  question\t the
\ncorrectness  of\t the finding of the learned Munsif  and\t the
\nlearned Subordinate Judge, but only ignored it on the ground
\nthat  it  was not the duty of the lower appellate  court  to
\ndeal  with that question at all.  We cannot  appreciate\t the
\nobservations of the learned Judge of the High Court, for, in
\nour  view, that finding, as the learned Munsif pointed\tout,
\narose  on  the pleadings and, as the lower  appellate  court
\npointed out, had a direct impact on the main question to  be
\ndecided\t in  the case.\tWe, therefore, hold  that  the\tsaid
\nfinding was binding upon the High Court.\n<\/p>\n
Even  if  that\tfinding was ignored,  there  was  sufficient
\nmaterial  to  sustain the finding of the first\ttwo  courts.
\nBoth the courts found that the first defendant, on whom\t the
\nburden lay, not only did not establish that it was  executed
\nby  the\t plaintiff with the knowledge of its  contents,\t but
\nthat  even  apart from the burden of proof, that  they\talso
\nfound  that  the plaintiff and her mother-in-law  put  their
\nthumb marks on the document under the impression that it was
\na  power  of attorney.\tThe finding is one of fact  and\t was
\nbased upon the following relevant facts : (1) The  plaintiff
\nand her mother-in-law were pardanashin and illiterate women-
\none of them was old and the other was middle-aged. (2)\tThey
\nhad full confidence in the first defendant. (3) Babu Ramnath
\nSingh, who wrote the names on the document was not proved to
\nbe the brother of the plaintiff. (4) The document was in the
\ncustody of the defendant. (5) The plaintiff and her  mother-
\nin-law\twere  in  enjoyment of the  property  as  they\twere
\nenjoying it even
\n469<\/span>
\nbefore the execution of the document. (6) The defendant\t had
\nnot  examined either Babu Ramnath Singh or  other  important
\nwitnesses who could have proved the fact that the  plaintiff
\nand her mother-in-law had the knowledge of the nature of the
\ndocument. (7) The defendant managed to get this document  by
\nfraud  to facilitate mutation of the property in  his  name.
\nAnd (8) the plaintiff gave acceptable evidence in support of
\nher  case.  The finding of the both the courts is  supported
\nby  evidence,  and  there  is  no  permissible\tground\t for
\ninterference with it in second appeal.\n<\/p>\n
For the aforesaid reasons, we find that the learned Judge of
\nthe   High  Court  had\terroneously  interferred  with\t the
\nconcurrent  findings  of fact arrived at by  the  first\t two
\ncourts.\t  In the result, we allow the appeal, set aside\t the
\ndecree\tof  the High Court and decree the  suit\t with  costs
\nthroughout.\n<\/p>\n
Appeal allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mst. Kharbuja Kuer vs Jangbahadur Rai on 9 April, 1962 Equivalent citations: 1963 AIR 1203, 1963 SCR Supl. (1) 456 Author: K Subbarao Bench: Subbarao, K. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-135285","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMst. 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