CHINTA DASYA Vs. BHALKU DAS

JUDGEMENT

(1.) This is an appeal by the plaintiff from a decision of the Subordinate Judge of Jalpaiguri reversing a decision of the Munsif, Second Court, Jalpaiguri and arises out of a suit brought by the plaintiff to set aside a kobala on the ground that it was obtained by fraud, misrepresentation, and undue influence. The plaintiff was a tenant of the defendant and her case was that she was tricked into executing a document which she believed to be a mortgage-bond on a representation made by the defendant that he had got a decree against her for Rs. 500 and that upon that pretext the document was executed by her. It proved, however, eventually to be a kobala whereby she disposed of her entire properties including her homestead. The defence was that the kobala in question was executed for good consideration which consisted of (1) a debt of Rs. 117 due in respect of two bonds; (2) a debt for arrears of rent and (3) a sum of Rs. 112 odd in cash. The trial Court upon a consideration of the evidence and all the circumstances of the case came to the conclusion that no consideration had been paid to the plaintiff and that she had been tricked into executing the kobala under the belief that what she was executing was a usufructuary mortgage with the object of discharging her liabilities. The Munsif in arriving at his decision attached a good deal of importance to the fact that the plaintiff was an illiterate woman of low mentality and also to the fact that in carrying out the transaction she had not had the advice or assistance of any relative or of any person who could give her independent or intelligent advice. The evidence establishes that her husband was away at the time and that her son-in-law who might have been present was in fact not present and knew nothing about the transaction. The Munsif, therefore, decreed the suit with costs. The defendant then appealed to the District Court and the learned Subordinate Judge who heard the appeal reversed the findings of the trial Court and held that the sale-deed was not taken by fraud, it was not liable to be declared as void and nugatory and that it was executed for good consideration. This appears to be a finding of fact with which we are not at liberty to interfere in second appeal unless it can be shown that the finding has been arrived at through some error of law. On the whole the conclusion at which I have arrived speaking for myself is that the finding of the lower Appellate Court is vitiated by what appears to me to be a fundamental error in regard to the established rule of law relating to transactions of pardanashin women. The learned Subordinate Judge has observed in his judgment: "She was not a pardanashin lady and she was bound to prove all these allegations of fraud and misrepresentation. This, in my opinion, she has failed to do." Further on he says "so the whole case of the plaintiff rests upon her own uncorroborated testimony. In the circumstances her suit could not have been decreed even if the defendant had not adduced any rebutting evidence." The rule of law so far as pardanashin woman is concerned is well known and has been clearly laid down in many decisions of the Privy Council. It is true that most of those decisions relate to the case of pardanashin ladies. We have not been referred to any case in which the principle has been extended to the case of other women who do not come within that class but that does not seem to be any reason why a rule which is applicable to pardanashin ladies on the ground of their ignorance and illiteracy should be restricted to that class only and should not apply to the case of a poor woman who is equally ignorant and illiterate and is not pardanashin simply because she does not belong to that class. If that view of the matter were adopted the effect clearly would be to confer an unfair advantage upon rich women as compared with poor women. The object of the rule of law is to protect the weak and helpless and it should not, in my judgment, be restricted to a particular class of the community. It seems to me that what the learned Subordinate Judge has done amounts in a manner to misplacing the onus of proof. The plaintiff proved certain facts, for example, that her husband was away and her son-in-law also was not present at the time of the transaction, that she had no independent advice, that she was not in such need of money at the time that as would necessitate the sale of her entire land; further she herself deposed that she was given to understand that the deed in question was a usufructuary mortgage and that she had no idea that she was selling the land outright. These facts, it seems to me, were sufficient to discharge the onus which lay upon the plaintiff and shift on to the defendant the onus of satisfying the Court that the nature of the transaction had been duly explained and properly understood by the plaintiff. That, in my judgment, is the point of view from which the evidence should have been examined.

(2.) The result is, that the decree of the lower Appellate Court is set aside and the case is sent back to that Court in order that the appeal may be re-heard and decided according to law, in the light of the observation made above.

(3.) Costs will abide the result. Mitter, J.