MANU/SC/0392/1962

Equivalent/Neutral Citation: AIR1963SC 1203, 1962(10)BLJR892, 1962 INSC 130, [1963]1SC R456

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 522 of 1959
Decided On: 09.04.1962
Kharbuja Kuer Vs. Jangbahadur Rai
Hon'ble Judges/Coram:
A.K. Sarkar, J.R. Mudholkar and K. Subba Rao, JJ.
JUDGMENT
K. Subba Rao, J.
1 . 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.

2 . 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 August 24, 1935, believing it to be a power of attorney, that subsequently the came
to know that it was a maintenance deed continuing 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 firs defendant, that the plaintiff and her
mother-in-law, till the latter's death, were getting the income from the property as they
were getting before the execution of the said documents and that they came to know of
the fraud only in 1355 fasli, when the first defendant began to interfere with the
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possession and occupation of the property by the plaintiff and disclosed to several
people that she had only as 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."
3. The relief claimed is rather involved, but in sub-stances 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. (19-7) correct ?"
4. 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
?"
5. Issue No. 5 - "Are the plaintiffs entitled to the reliefs claimed ?"
6. 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.
7. 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 understanding 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 that standpoint and held that the plaintiff
had not established her case; and on that finding, he dismissed the suit.
8. Mr. D. P. Singh, learned counsel for the appellant, raised before us two contentions,
namely, (1) the learned Judge of the High Court was wrong on the question of burden
of proof; and (2) the learned Munsif and the learned Subordinate Judge had not only
thrown the burden of proof rightly on the defendant, but they had also given their
findings on the entire evidence, and therefore the burden of proof became immaterial
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and the findings of fact given by the said courts were binding on the High Court under
section 100 of the Code of Civil Procedure.
9. 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 and the circumstances of the case clearly discharged that
burden.
10. 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 understanding
the true import of the document. Imam, J., in second appeal reversed the said findings
on the ground that they were vitiated by an erroneous view of the law in the matter of
burden of proof. The judgment, if we may say so with respect, consists of propositions
which appear to be contradictory. The learned Judge, after reviewing the case law on
the subject, concludes his discussing by hooding that it was the duty of the plaintiff to
prove that there was fraud committed and that, as that had not been established, the
question whether the 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 Privy Council in a series of a
decisions. In Indian pardhanashin 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. Mukhtar Ahmad
(1925) L.R. 52 IndAp 342, Lord Summer 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 influence
of others, even though nothing in the nature of deception or coercion may have
occurred. This is part of the law relating to personal capacity to make binding
transfers or settlements of property of an kind."
11. The learned Lord also pointed out :
"Of course fraud, duress and actual undue influence are separate matters".
12. It is, therefore, manifest that the rule evolved for the protection of pardhanashin
ladies shall not be confused with other doctrines, such as fraud, duress and actual
undue influence, which apply to all persons whether they be pardhanashin ladies or not.
1 3 . The next question is what is the scope and extent of the protection. In Geresh
Chunder Lahoree v. Mst. Bhuggobutty Debia [1870] 13 M.I.A. 419. the Privy Council
held that as regard documents taken from pardhanashin 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 pardhanashin woman. In Kali Baksh v. Ram Gopal [1913] 41 I.A. 23, the
Privy Council defined the scope of the burden of a person who seeks to sustain a
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document to which a pardhanashin lady was a party in the following words :
"In the first place, the lady was a pardhanashin 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 grantor".
1 4 . 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 (1925) L.R. 52. IndAp
342. it was stated :
"The mere declaration by the settlor, subsequently made, that she had not
understood what she was doing, obviously is not in itself conclusive. It must be
a question whether, having regard to the proved personality of the settlor, 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 settlor or not. If the answer is in
the affirmative, those relying on the deed have discharged the onus which rests
upon them".
1 5 . While affirming the principle that the burden is upon the person who seeks to
sustain a document executed by a pardanashin lady that the 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 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 Jagadish Chandra v. Debnath A.I.R.
1940 P.C. . 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 providing that the
document was explained to her and that she understood it, but also by other evidence,
direct and circumstantial.
16. If that be the law, a perusal of the judgments of the three courts demonstrates that
while the learned Munsif and the learned Subordinate Judge approached the case from a
correct perspective, the High Court misled itself by a wrong approach. The relevant
issue we have already extracted shows that the burden was thrown upon the defendant.
The first two courts approached the evidence from that standpoint and gave a
concurrent finding that it had not been established that the plaintiff executed 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

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with the said finding.
17. Learned counsel for the respondents contends that on one of the crucial findings
which influenced that first two courts 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 separation was on the plaintiff and having held that there
was no acceptable oral 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
learned Munsif rightly did not accept the said suggestion and held that the issue had
been framed on the pleadings and that all the relevant evidence had been adduced and
that it was only proper to give a finding thereon. The learned Subordinate Judge
pointed out that the main point for consideration 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 jointness 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.
18. 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 said 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. The 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 circumstantial, he came to the following conclusion :
"Although the oral evidence on both the sides on the point of jointness and
separation is not satisfactory but from the circumstances adduced from the facts
of the case I am convinced that Rameshwar died in states of separation from
Jangbahadur."
19. It cannot be said from the said finding that he 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 an it cannot be said that it is not based on evidence.
20. Now coming to the appellate court, the learned Subordinate Judge reviewed the
entire evidence, oral, documentary, circumstantial, and arrived at the following findings
:

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 "In view of the facts and the circumstances narrated above, while the
probabilities are that there was a disruption in the joint family of Rameshwar
and Jangbahadur 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
Rameshwar'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 Rameshwar and Jangbahadur 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 not discussion is required to declare it as a
forged and fraudulent document."
21. It is true the finding could have been more explicit, but that does not detract from
its finality. In the first part of the finding, the learned Subordinate Judge says in effect
that, having regard to the facts and circumstances he had discussed earlier, the burden
shifted to the first defendant, who did not adduce acceptable evidence to dislodge the
circumstances against jointness. But in the second part of the finding he makes it clear
that he had 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 appreciate the observations of the learned Judge of the High
Court, for, in our view, that finding, as the learned Munsif pointed out, arose on the
pleadings and, as the lower appellate court pointed out, had a direct impact on the main
question to be decided in the case. We, therefore, hold that he said finding was binding
upon the High Court.
22. 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 document
under the impression that it was a power of attorney. The finding is one of fact and was
based upon the following relevant facts : (1) 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 has full confidence in he first defendant. (3) Babu Ramnath Singh, who wrote
the names on the document was not proved to be the brother of the plaintiff. (4) The
document 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 even before the execution of
the document. (6) The defendant had not examined either Babu Ramnath Singh or other
important witnesses who could have proved the fact that the plaintiff and her mother-
in-law had the knowledge of the nature of the document. (7) The defendant managed to
get this document by fraud to facilitate mutation of the property in his name. And (8)
the plaintiff gave acceptable evidence in support of her case. The finding of the both the
courts is supported by evidence, and there is no permissible ground for interference
with it in second appeal.
23. For the aforesaid reasons, we find that the learned Judge of the High Court had
erroneously interfered 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.
24. Appeal allowed.

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