KHATEJAN BIBI Vs. HAJI MAHOMED YUSUF

JUDGEMENT

(1.) This is an appeal by the plaintiff from the decision of the Additional District Judge of 24- Parganas dated 26 January 1933 reversing the decision of the Subordinate Judge of the same district dated 27 March 1931 by which he decreed plaintiff's suit for declaration of title and recovery of possession of the properties mentioned in the schedule to the plaint. The case stated in the plaint is that the land in suit belonged to one Pecheruddi Mistri who died leaving him surviving him his son Belatali, his daughter Khatijan Bibi, (plaintiff) and his wife Abujan Bibi. Belatali died leaving behind him two wives, Nakjan and Kossiman, his sister Khatijan (the plaintiff) and his mother Abujan. Abujan is dead and plaintiff claims 6 annas 13 gandas 1 kara share of the property which she inherited from Pecheruddi and his heirs. It is further stated in the plaint that plaintiff's brother got an Ammukhtarnama executed by her and her mother and Nekjan Bibi, alleging that the execution of the Ammukhtarnama was necessary for the purposes of the management of their property, but the contents of the said Ammukhtarnama were never read over or explained to her, and that she never authorised Belatali to sell or mortgage any land of hers by this Ammukhtarnama and that she is an illiterate pardanashin, woman and that her husband and brother were both men of dissolute habits and that on the strength of this Ammukhtarnama Belatali executed a mortgage by way of conditional sale in the year 1324 B.S. in respect of 53 bighas odd (of which 35 bighas odd are the lands in suit and the remaining 17 bighas odd belonged to Nekjan Bibi) in favour of Haji Abdulla for Rs. 1,000 whereas the value of the property would be about three thousand rupees. As regards the 17 bighas land Nekjan brought a suit against Abdulla to set aside the kobala and was successful. The plaintiff further alleged that the document of 1324 B.S. really constituted a mortgage and has prayed for redemption of the same if the Court holds that the document binds her. Haji Abdulla is now dead and defendants 1 to 8 are his heirs and legal representatives. To this suit to avoid the document or in the alternative to redeem, plaintiff joined the prayer for declaration of title and recovery of possession. The defence of the defendant is that there was no fraud or undue influence and that the deed in question was an out and out sale and not a mortgage by way of conditional sale. On these pleadings several issues were joined and they are set forth at p. 2 of the paper-book. Substantially three questions arose for determination before the Subordinate Judge: (1) Was the Ammukhtarnama executed by plaintiff and her mother after fully understanding the purport of the same? (2) If not was the conveyance in favour of Abdulla binding on the plaintiff? and (3) Was there any agreement between Belatali and the defendant's predecessor Haji Abdulla that defendant will reconvey the property in suit on the repayment of Rs. 1,000?

(2.) The Subordinate Judge found (1) that there is no evidence that the Ammukhtarnama (of which only a certified copy was produced in Court) was read over and explained to plaintiff and her mother; (2) that the power of attorney was executed under undue influence; (3) that the sale on the strength of this power of attorney or Ammukhtarnama was not binding on the plaintiff or her mother and that the plaintiff was entitled to a declaration of title to the share claimed less the share which she inherited from her brother Belatali after his death; and (4) that the deed in question was an out and out sale and not a mortgage by way of conditional sale. The Subordinate Judge accordingly declared plaintiff's title to 5/12ths share in the property in suit and directed that she do get possession of the same.

(3.) Against this decree an appeal was taken to the Additional District Judge of 24-Parganas. The learned District Judge states rightly enough that the question to be decided is whether Abujan and Khatijan did understand the nature of the transaction when they executed their Ammukhtarnama but does not come to a definite finding on the question. The Subordinate Judge whose finding the learned District Judge was reversing, came to the distinct finding that there was no evidence that the Ammukhtarnama was read or explained either to plaintiff or her mother. The learned District Judge finds that "it may well be true, as was alleged, that at the time the Ammukhtarnama was executed plaintiff was a young and inexperienced girl" and one would have expected that the lower appellate Court should have held that the rule laid down by their Lordships of the Judicial Committee of the Privy Council in a number of cases that in the case of deeds and powers executed by Pardanashin ladies it is requisite that those who rely on them should satisfy the Court that they have been explained to and understood by those who execute them, should apply with greater force having regard to the illiteracy, youth and inexperience of plaintiff and her mother and their liability to be influenced or imposed on by near relations like her brother or son who are alleged to be men of weak character and immoral habits: See Sudhist Lal V/s. Sheobarat Koer (1881) 7 Cal 245 and Shambati Koeri v. Jago Bibi (1902) 29 Cal 749.