KHARBUJA KUER Vs. JANGBAHADUR RAI

JUDGEMENT

(1.) THE following Judgment of the court was delivered by

(2.) 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 contentions of the parties, the following genealogy will be useful. <IMG>JUDGEMENT_1203_AIR(SC)_1963Image1.jpg</IMG> 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 pardhanashin ladies, executed a document in his favour 'on 24/08/1935, 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 defendant. It was also alleged that the document was 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 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.

(3.) 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 pardanashin 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 settler, 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 settler, 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.