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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

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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

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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

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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

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             (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

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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

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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

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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.