AMIYA KUMAR PANDA Vs. SANTOSINI MISHRA

JUDGEMENT

(1.) The plaintiff is the appellant against a reversing judgment in a suit for declaration th3t the sale deed executed by defendant No. 2 in favour of Matadin Agarwal in respect of Schedule 'A' land is fraudulent, invalid and illegal and is without consideration and is not binding on the plaintiff as well as on defendants 2 and 3 and for a declaration that the plaintiff and defendants 2 and 3 have right, title and interest over the said 'A' schedule land and for eviction of defendant No. 1 from the aforesaid Schedule 'A' land. After stating facts, findings and submission, it is held : In view of the rival submissions made at the Bar, the sole question that arises for consideration is whether this Court can examine the question as to the validity of the sale deed on the ground that it was executed by an illiterate lady and that there is no finding that the document was read over and explained to such lady and she executed the same after fully understanding the contents thereof: 9. It is to be noticed that the plaintiff had alleged the invalidity of the sale dead executed by her mother defendant No. 2 on the ground of fraud practised by Matadin Agarwal while his mother was mentally daranged. This specific allegation of fraud as well as the mental derangement of Bhargabi at the time of execution of the sale deed though even found by the trial Court but have been reversed by the lower appellate Court. But on that score alone the lower appellate Court could not have, come to the conclusion that the sale deed Ext. B/2 executed by defendant No. 2 in favour of Matadin Agarwal is valid when such a document had been executed by an illiterate lady and there has been no finding of the lower appellate Court that she executed the document after the document was read over to her and fully understanding the contents thereof. The law with regard to the document' executed by a pardanashin lady has been fuly laid down by their Lordships of the Supreme Court in the case of Mst. Kharbuja Kuer v. Jangbahadur Rai and Ors. (AIR 1963 SC 1203). Relying upon the decision of the Privy Council it was held : 'In India pardahnashin ladies have been given a special protection in view of the social conditions of the times : 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.' It has been further held 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 persons whether they be pardahnashin ladies or not. Ultimately their Lordships summarised the legal position as thus : 'The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardahnashin 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,'

(2.) While explaining the scope and extent of such protection the Privy Council in the case of Geresh Chunder Lahoree v. Mst. Bhuggobutty Debia (13 Moo Ind. App. 419 (PC) held that the Court had to ascertain in case of a document executed by a pardahnashin lady that the executant had been a free agent and had been duly informed of what she was about. The law that applies to a pardahnashin lady equally applies to an illiterate lady and. therefore, the same protection has to be afforded and some tests are to be applied while deciding the legality of a document executed by an illiterate lady. In the aforesaid premises, even if the finding of the lower appellate Court that Bhargabi was not insane at the time of executing the sale deed Ext. B/2 and therefore, no fraud has been committed by Matadin Agarwal in getting the sale deed cannot be interfered with and is also not assailed by the learned counsel for the appellant. Yet Bhargabi being an illiterate lady and there being no finding that she executed Ext. B/2 after the document was read over and explained to her and after knowing the contents thereof, Matadin did not derive any title under Ext. B/2. 1 do not find any substance in the contention of the learned counsel for the respondent that such a contention not having been specifically pleaded, cannot be urged in Second Appeal. The validity of the sale deed was in issue and the trial Court found Bhargabi to be an illiterate lady which finding had not been disturbed by the lower appellate Court. The question as to whether Matadin derived title on the basis of the sale deed Ext. 2 which had been executed by Bhargabi in his favour. Bhargabi being an illiterate lady and there being no finding that Bhargabi has executed the same after the document was read over and explained and after she understood the contents thereof is a pure question of law. In such a transaction, the duty being on the Court to ascertain as to whether the party executing the document has been a free agent and has been duly informed of what she was about and the said burden of proof being always upon the person who seeks to sustain a transaction entered into with an illiterate lady to establish that the said document was entered into by her after clearly understanding the nature of the transaction and that it was not physical act but her mental act too and further whether that burden has been discharged by the person or not can always be considered by the second appellate Court, the same being a pure question of law. In the aforesaid premises and in view of my conclusion that defendant No. 1 has failed to discharge the burden that lay on her to establish that Ext. B/2 was executed by Bhargabi after the document was read over and explained to her and after she knew the contents thereof fully, I have no hesitation to conclude that Ext. B/2 did not convey any title in favour of Matadin Agarwal and, therefore, defendant No. 1 derive no title on the basis of Ext. A executed by Matadin in her favour. Consequently the judgment and decree of the lower appellate Court are wholly erroneous and cannot be sustained. Accordingly the judgment and decree of the lower appellate Court are set aside and those of the trial Court are affirmed. The Second Appeal is allowed. There will, however, be no order as to costs.