Mst. Kharbuja Kuer v. Jangbahadur Rai

Subba BaoJ. 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 understand-ing 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, does not arise." He considered the evidence from 1962 that standpoint and held that the plaintiff had not M st. Kharbuja Krier v. established her ease; and on that finding, he dismis-Jungbahadur Roi sed the suit. Subba Rao J,

Mr. D. P. Singh, learned counsel for the appel-lant, raised before us two contentions, namely, ( J) the learned Judge of the High Court was wrong Gn the question of burden of proof; and (2) tho learned Munsif and the ]earned Subordinate tT udge had not only thrown the burden of proof rightly on the defen-dant, but they had also given their :findings on the entire evidence, an~ 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 widows was on the defendant, the evidence aud the circumstances of the case cle!trly 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 understand· ing the true import of the document. Imam, J., in second appeal reversed the said findings on the ground that they were vitiated Ly an erroneous view of the law in the matter of burden of proof.

The judgment, if we may say so with respect, con-sists of propositions which appear to bu contradic-tory. The learned ,Judge, after reviewing the case

law on the subject, concludes his discussion by hold-i~g that it was the duty of the plaintiff to prove M 11. 11".Wb~fa Kue• that there was fraud committed and that, as that

v.

Jallg/lllhadur R•i had not been established, the question whether the SubbaR,.J, 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 J!rivy Council in a series of decisions. 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. In Farid-Un-Nisa v. Mukht.ar Ahmad('), 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 inflm·nce 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 a.nd actual undue influence a.re separate matters".

It is, therefore, manifest that the rule evolved for the protection of pardabnashin ladies shall not be confused with other doctrines, such as fraud, dureBB and actual undue influence, which apply to all persons whether they be pardanashin ladies or 196B not. Mat .. Eharbuja •• KU1r

The next question is what is the scope and J angb ahiMlu.r Rai extent of the protection. In Geresh Ohuruler Lahoree v . .Mst. BhuggobuUy Debia (') the Privy Council held Subba &o J. that as regards documents takeh from pardanashin women the oourt has to ascerta.in that the party executing themhad been a free agent and duly infor-med 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 pardana-shin 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 oases it must also, of course, be established that the deed W!Mt not signed under duress, but arose from the free and independent will of the gra.ntor".

The view so broadly expressed, though affirmed in essence in eubsequ~nt decisions, was modified, to some extent, in regard to the nature of the mode of discharging the said burden. In Farid-Un-Nw v. M ttkkl4r Ahmad (•)it was stated :

"The mere declaration by the settlor,

(I) [1870) 13 M. J. A. 419. (~) [1918) 41 I . ..A. 23, 29,

(3) (1925) L.ll. S2. I. A. 342. 3501 ~52. .

subsequently made, that she had not under-stood what she was doing, obviously is not in Mil. Klul,huja •• Kun itself conclusive. It must be a question Jargb.i.adu. Kun whether, having regard to the proved perso-

SulllaRa.J. nality of the settlor, the nature of the settle-ment, the 9ircumstances under which it was executed, and the whole history of the parties, it is reasonably esta blised that the deed executed was the free and intelligent act of the settlor 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 execut-ed the document or not 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 Jagadieh Chandra v. Debnath ('). Further citation is unneces· sary. 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 parda· nashin 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 hl'lr 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

(I) A.!.R. 1940 P.C. 134.

learned Munsif and the learned Subordinate Judge JHI approached the case from a correct perspective, the Mil. Kbarbrg• Kwr High Court misled itself by a wrong approach. The v. relPvant issue we have already extracted J angfl•/ladur Roi ~hows that the burden was thrown upon the defendant. Sr/J/JG Rao J. The first two courts approached the evidence from that standpoint and gave a concurrent finding that it had not been established that the plaintiff execut-ed 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 whioh influenced the first two oourts 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 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 sepa.ration was on the plaintiff and.having held that there was no acceptable ora] 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 learn-ed Munsif rightly did not accept .the said suggestion ,.lld beld that the isaqe ha.d been framed ou tho

466 SUPREME COURT RE.PORTS (1963)

I96B pleadings and that all the relevant evidence had M.d. Kharhuja Kuer been adduced and that it was only proper to give

v. a finding thereon. The learned Subordinate Judge Jangbahadur Rai pointed out that the main point for consideration Subba Rao J. 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 jointnesa 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 the question of probability of the widows executing a document admitting that there was no partition in the family and that they had 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 ea.id 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 circumstan-tial, he came to the following conclusion :

"Although the oral evidence on both the 11ides on the point of jointness and sepa.raiioJJ

is not satisfactory but from the circumstances 198B] adduced from the facts of the case I am Msl. KAarbiga •• KU11 convinced that Remeshwar died in states of separation from Jangbahadur." J ongba/ladur R~ It cannot be said from the said finding that he Su66a RaoJ. 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 lear-ned Subordinate Judge reviewed the entire evidence, oral, documentary and circumstantial, and arrived at the following :findings :

' 1ln view of the facts and the circum-stance narrated above, while the probabilities 1tre that there was a disruption in the joint family of Ramesh war and J angbahadur 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 Rametthwttr'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 Ra.rneshwar and ,Ja.ngbahdur 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 havo been more explicit, but tha.t does not detract from its finality. In tho first part of the finding, the learned Subordinate Judge says in effect that, having regard to the facts a,ni c! ro1up.st~llces he had discussed earlier t4(} 1962 burden shifted to the first defendant, who did not Mse. KliarbujiJ adduce acceptable evidence to dislodge the

K~ •• circumstances against jointness. But in the second Jangbahadur Rai part of the finding he it clear that he had mak~s Subba Rao J. 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 appreoiate the observations of the learned Judge of the High Court, for, in our view, that finding, as the learned Mun8if pointed out, arose on the plea.dings and, as the lower ap-pE>llate 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 decument under the impreasion that it was a power of attorney. The finding is one of fact and was based upon the following relevant facts : ( l) 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. ('I) Babu Ramnath ~ ingh, who wrote the names on the document was not proved to be the brother of the plain tiff. ( 4) The docu-ment 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 11veu before the execution of the document. (6) The 1961 defendant had not examined either Babu Ramnath Mst. Kharbuja Kuer Singh or other important witnesses who could have v. proved the fact that the plaintiff and her mother-J angbohadur Rai in-law had the knowledge of the nature of the Subba Rao'· dooument. (7) The defendant managed to get this docum~nt by fraud to facilitate mutation of the property in his name. ·And ( 8) the plaintiff gave acceptable evidenca in support of her cas'3.

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.

NAWAB ZAIN YAR JUNG AND OTHERS 11ss

v. .4pril 9.

THE DIRECTOR OF ENDOWMENTS AND

ANOTHER

(B. P. SINHA, c. J., P. B. GAJENDRAGADKAR, K. N.

WANCHOO, N. RAJAGOPALA AYYANGAR and

T. L. VENKATARAMA A!YAR, JJ.)

Trust Properly-Wale/ and Public Oharitable Tt"UB~ Distinction-Rule of interpretation of documents -The W akJ Act, 1954 (29 of 1964), ss. 3(l), 9, 28-Hyderabad Etulowment Regulation, 1348-F (1939).

The appellants were appointed trustees by the Nizam of Hyderabad by a trust deed executed on June 14, 1954. On March 2, 1959, respondent No. l, who was the Director of Endowments and Joint Secretary, Board of Revenue, served a notice on the appell~11ts calling-upon them to re~ister the s~i4