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Mustt. Jubeda Khatun Vs. Sulaiman Khan - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberL.P.A. No. 5 of 1977
Judge
ActsEvidence Act, 1872 - Sections 111; Contract Act, 1872 - Sections 16; Negotiable Instruments Act, 1881 - Sections 118; Code of Civil Procedure (CPC) , 1908 - Sections 34 - Order 34, Rule 11
AppellantMustt. Jubeda Khatun
RespondentSulaiman Khan
Appellant AdvocateD.N. Baruah and H.N. Sarma, Advs.
Respondent AdvocateB.K. Goswami and P.K. Kalita, Advs.
DispositionAppeal dismissed
Prior history
Das, J.
1. This is an appeal under Clauses 15 of the Letters Patent against the judgment and decree of the learned single Judge of this Court dismissing the First Appeal No. 57/69 of the appellant. The appellant was the defendant in Original Title Suit No. 22/65 in the Court of the learned Assistant District Judge, Dibrugarh, a suit instituted by the present respondent for realisation of an amount of Rs. 19,800/- on account of a loan against a mortgage deed which was executed by the defendan
Excerpt:
- - the defendant having failed to repay the loan amount with interest, the plaintiff issued a notice demanding repayment of the loan and its interest. she further pleaded that at the time of execution of the alleged mortgage deed, it was not read over to her nor it was explained what was contained in the mortgage deed and she was not in a position to understand the implications and she signed it in good faith. the parties led their evidence, produced documents and submitted their respective contentions on facts as well as on law in the trial court. suradhani debya, air 1940 pc 134 sir george rankin adopted the view that in a document executed by a pardahnashin lady, the burden is upon the person who seeks to sustain the document and to show that she executed it clearly understanding..... das, j. 1. this is an appeal under clauses 15 of the letters patent against the judgment and decree of the learned single judge of this court dismissing the first appeal no. 57/69 of the appellant. the appellant was the defendant in original title suit no. 22/65 in the court of the learned assistant district judge, dibrugarh, a suit instituted by the present respondent for realisation of an amount of rs. 19,800/- on account of a loan against a mortgage deed which was executed by the defendant in favour of the plaintiff.2. it is not necessary to narrate the plaintiff's case in details as the learned single judge has narrated the case of the plaintiff and the defendant respective as set out in the pleadings. however, to get the grip of the background and to appreciate the contentions of.....
Judgment:

Das, J.

1. This is an appeal under Clauses 15 of the Letters Patent against the judgment and decree of the learned single Judge of this Court dismissing the First Appeal No. 57/69 of the appellant. The appellant was the defendant in Original Title Suit No. 22/65 in the Court of the learned Assistant District Judge, Dibrugarh, a suit instituted by the present respondent for realisation of an amount of Rs. 19,800/- on account of a loan against a mortgage deed which was executed by the defendant in favour of the plaintiff.

2. It is not necessary to narrate the plaintiff's case in details as the learned Single Judge has narrated the case of the plaintiff and the defendant respective as set out in the pleadings. However, to get the grip of the background and to appreciate the contentions of the parties, it would be convenient to put respectively cases of the parties in brief :

The plaintiffs case is that the defendant No. 1 borrowed a sum of Rs. 10,000/- on 24-5-57 from the plaintiff mortgaging the property described in the schedule to the plaint and executed a mortgage deed in favour of the plaintiff undertaking to pay interest thereon at the rate of 12% per annum. The defendant having failed to repay the loan amount with interest, the plaintiff issued a notice demanding repayment of the loan and its interest. On such demand made by the plaintiff, the defendant by Ext. 1 wrote to the plaintiff requesting him to grant one year's time to repay the loan with its interest. In Ext. I, the defendant admitted the loan amount of Rs. 10,000/- received in cash at the time of execution of the mortgage deed. As the defendant did not comply with her own terms as admitted in Ext. I, the plaintiff had no other alternative than to file the suit in the Cout of the learned Assistant District Judge, Dibrugarh claiming a total sum of Rs. 19,800/-including interest from the defendant for realisation of the loan amount. The suit was contested by the defendant No. 1 who filed the Written Statement wherein she pleaded that the mortgage deed was not valid according to law and that defendant No. 1 who had no independent advice, denied the execution of the same. She further pleaded that at the time of execution of the alleged mortgage deed, it was not read over to her nor it was explained what was contained in the mortgage deed and she was not in a position to understand the implications and she signed it in good faith. Defendant No. 1 further denied to have borrowed the entire sum of Rs. 10,000/- on 24-5-57 (the date of execution of mortgage deed) or on any other date by executing the mortgage deed in favour of the plaintiff. She had specifically pleaded that she borrowed Rs. 5,000/- only by

executing a deed and that she was surprised to know from the averments in the plaint that it was alleged that she had executed a mortgage deed against the loan . of Rs. 10,000.00. It had been alleged by the defendant that taking advantage of the defendant's illiteracy and as she is a 'pardahnashin lady', the plaintiff wilfully declined her for his wrongful gain by obtaining a thumb impression in the mortgage deed. A further plea was taken by the defendant-appellant that the mortgaged property did not belong to her as she was only a benamidar of her husband in respect to the said mortgaged property.

3. On the pleadings of the parties, several issues were formulated by the learned Trial Court. The parties led their evidence, produced documents and submitted their respective contentions on facts as well as on law in the trial Court. The learned Trial Court considered the evidence on record and on hearing both the parties relating to relevant issues involved in the suit, decreed the plaintiffs suit with cost. Accordingly, a preliminary decree was passed for the suit amount. Against the said preliminary decree, the defendant preferred an appeal to this Court being F.A. No. 57/69 which was heard by a learned Single Judge of this Court and by the judgment dated 30-6-77, dismissed the appeal. The appellant being aggrieved by the said judgment, preferred this Letters Patent Appeal Learned Single Judge considered the evidence on record threadbare in the light of the issues framed by the learned trial Court. The main issues, namely, Issues Nos. 3, 4 and 5 were the only relevant issues which were dealt with by the learned Single Judge. The issues so discussed by the learned Single Judge are set out herein below :

'3. What amount did the defendant borrow from the plaintiff -- whether Rs. 10,000/- or Rs. 5,000/-?

4. Whether the mortgage deed was read over and explained to the defendant?

5. Whether the mortgage deed was executed by the defendant?'

Learned Single Judge considered the three issues in the light of the evidence on record.

4. The learned counsel for the appellant urged 3 points before the learned Single Judge at the time of hearing of the appeal. It was

urged firstly that since the defendant is a 'pardahnashin lady', the plaintiff had to establish that the original mortgage deed was executed by defendant No. 1 and its contents were explained to her and that the defendant could know the contents and the nature of the transaction. It was further submitted that a mere proof of the deed in evidence was not sufficient to prove due execution of the deed. The second point which was raised before the learned Single Judge by the appellant was that the plaintiff is the nephew of the defendant's husband and the amount which was borrowed, as disclosed in the evidence, was fully utilized by the defendant's husband and her son to the exclusion of the defendant No. 1. It was further submitted that the plaintiff and the husband of the defendant in collusion, misled the defendant who would lose her property without deriving any monetary benefit out of the mortgage transaction. The last point as raised by the learned counsel for the appellant was as, regards the quantum of loan amount It was pleaded by the defendant that in any case the defendant was liable to pay only Rs. 5,000/- and not Rs. 10,000/- as mentioned in the mortgage deed. The registered mortgage deed was executed by a 'Pardahnashin' woman.

5. A pardahnashin lady, in its legal meaning is a woman of the rank who lives in seclusion, shut in the zanana, having no communication except from behind the pardah or screen with any male person save a few near relations. A pardehnashin woman need not necessarily be a woman of rank. If on account of the rules and customs of society she has to keep herself within the zanana and to lead a life of seclusion without any contact with the outside world, she is a Pardahnashin woman.

However, this old notion has now taken a. notable change along with the changed ages and the circumstances surrounding the society at large. The present society has been advanced to a new dimension in its educational, cultural and social atmosphere. A large number of women folk either Hindu, Muslim or Christian are now holding a responsible job in all spheres of avocation. In the present trend of the society only those who are residing in interior places and governed by strict custom prevailing in the society are confined under Pardah.

6. Now we are dealing with a case of the period of 1957 when the disputed mortgage deed was executed by a Pardahnashin lady against a loan. To realise the benefit of the mortgage deed when a suit has been instituted against a pardahnashin lady a question poses -- on whom the burden lies to prove the document executed by a pardahnashin lady? The Courts of equity have invariably placed the burden of sustaining the transaction upon the party benefited by it requiring him to show that it was of an unobjectionable character and one which they ought not to disturb. The result of many decisions appear to be that in the case of deeds executed by a pardahnashin woman it is requisite that those who rely upon them should satisfy the Court that they have been explained to and fully understood by those who executed them. The Court when dealing with a deed alleged to have been executed by a Pardahnashin lady, must before it gives effect to it, satisfy itself on the following conditions :

(1) That she is really a pardahnashin woman who lives in complete seclusion and has little or no commerce with the outside world.

(2) That the deed was actually executed by her or by some person duly authorised by her with a full understanding of what she was about to do.

3. That she had full knowledge and understood the nature and effect of all the transactions into which she is said to have entered. A mere reading or translation is not sufficient.

4. That she had independent and disinterested advice in the matter.

5. That she understood the whole document.

These principles fall broadly into two groups, namely, first, cases where the person who seeks to hold the lady to the terms of her deed is one who stood towards her in fiduciary character or in some relation of personal confidence and secondly, cases where the person was an absolute stranger and dealt with her at arms length. The fairness of the bargain is crucial itself. The doctrine applies only to the cases of execution of a document by a Pardahnashin lady. But if the lady is not pardahnashin or though pardahnashin is literate and is of considerable intellectual

capacity, the Court will not incline to interfere with the deed if it is prima facie proved that the document was executed by her with consent and intention. The Rule regarding transaction by a pardahnashin lady also applies equally to illiterate and ignorant woman though not pardahnashin. The object is to protect the week and helpless and it is not confined or restricted to a particular class or community.

The conception as regards the burden of proof in respect of a document executed by a pardahnashin lady, we get catena of decisions of the Privy Council adopted by their Lordships of the Supreme Court. In Farid-Un-Nisa v. Mukhtar Ahmad, AIR 1925 PC 204 it was observed by the Privy Council:

'.....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.'

Lord Summer 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 any kind.'

It was further pointed out --

'Of course fraud, duress and actual undue influence are separate matters'.

It is, therefore, manifestly clear that the doctrines, such as fraud, duress and actual undue influence may be applicable to all persons whether they be Pardahnashin ladies or not.

7. In Kali Bakhsh v. Ram Gopal, (1913) 41 Ind App 23 their Lordships of the Privy Council defined the scope of the burden of a person who seeks to sustain a document where a pardahnashin lady is the party. It was observed:

'In the first place, the lady was a pardahnashin 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 attack 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 guarantor. In such case 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 guarantor.'

In Hem Chandra v. Suradhani Debya, AIR 1940 PC 134 Sir George Rankin adopted the view that in a document executed by a Pardahnashin lady, the burden is upon the person who seeks to sustain the document and to show that she executed it clearly understanding the nature of the transaction and that she voluntarily executed the document. Therefore, the well settled legal position is that 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 transaction. It should be proved that she was prepared to act both physically and mentally in execution of the said document and this burden must be discharged by evidence, direct and circumstantial.

8. In the present case at hand, it is clear that the stand taken by the defendant/ appellant is that she is a pardahnashin lady and the mortgage deed was executed by the defendant. The facts of the case establish that the defendant needed money arid at the advice of her husband who was all along present in the transactions, she executed the deed. Once it is established that the mortgage deed was executed without undue influence, duress and/or by fraud, it cannot be said that she was unaware of the contents or the documents. The surrounding circumstances and the evidence on record, direct and circumstantial satisfy us that the defendant intended to execute the mortgage deed and there is no variation about what the defendant intended to execute and what in fact she executed. The burden of proof has amply been discharged by the direct evidence adduced by the plaintiff coupled with many circumstances appearing on the face of the record.

In this case the following circumstances are apparently present on the evidence on record which have convinced us that the decree was rightly passed in favour of the plaintiff against

the defendant No. 1. The circumstances are :

(a) That the mortgage deed was a registered deed and the executor of the deed, namely, the defendant No. 1 was identified by her husband as the executor of the deed.

(b) That the defendant No. 1 had not denied about the fact of obtaining the loan from the plaintiff. What had been denied was only as regards the quantum of loan amount.

(c) That during the transaction the husband of the defendant No. 1 was all along present and he fully utilised the loan amount as per desire of defendant No. 1.

(d) That the defendant No. 1 by Ext. 1 admitted the loan amount as well as the execution of the mortgage deed and requested the plaintiff for extension of time for repayment of the loan to the plaintiff.

(e) If such loan was not obtained and the deed was not executed, the defendant No. I or- her husband could have denied the same and could have taken appropriate steps against the plaintiff on receipt of the demand notice.

(f) By the acceptance of the demand notice and reply by Ext. I admitting the liabilities the defendant No, 1 is estopped from denying the same.

(g) Absence of any proof of duress or undue influence on defendant No. 1 to compel her to execute the mortgage deed is another circumstance in favour of the plaintiff.

All these circumstances are appearing in the case. It appears from the evidence on record that the plaintiff could be able to show all the above circumstances by cogent evidence and on admission of the defendant No. 1 in this regard, in our opinion the burden has been fully discharged by the plaintiff to saddle the defendant No. 1 with the liabilities as to the amount of loan on the basis of the registered mortgage deed.

Mr. Baruah, the learned counsel for the appellant could not challenge the above circumstances because they are apparent from the evidence on record The learned counsel also has not seriously argued on the point of the burden of proof discharged by the plaintiff relating to the execution of the mortgage deed and of the loan amount.

9. In course of submission, the learned counsel for the appellant placed reliance on the following decisions :

AIR 1921 PC 118 (Matilal v. E.M. & A. Co. Ltd.), AIR 1958 Orissa 62 (Bhikary Ram v. S.H. Mohammad).

The learned counsel for the respondent-plaintiff placed reliance on the observations of the Court in Suraj Prasad v. Makhne Devi, AIR 1946 All 127 and of Kharbuja Koer v. Jangbahadur as reported in AIR 1963 SC 1203. The learned Single Judge discussed the evidence of both sides, considered the ratio of the decisions cited by the learned counsel of the parties and concluded with positive findings that the plaintiff could prove his case to the effect that the defendant No. 1 borrowed a sum of Rs. 10,000/- by executing a mortgage deed relating to the suit property with an undertaking to repay the same with interest and that she having failed to repay the amount, the plaintiff was entitled to a decree with its interest and costs. The learned Single Judge also considered Ext. I, a legal notice sent on behalf of the defendant on 25-6-62 through her pleader P.W. 1. It was stated specifically in the said notice that his client admitted her liability to pay the loan amount of Rs. 10,000/- to the plaintiff on account of the mortgage deed with a request to allow her one year's time to pay up the same. Ext I was a reply to a demand notice of the plaintiff. Ext. I was duly proved by P.W. 1 an advocate of standing practice of Dibrugarh Court. The learned Single Judge considered the evidence of P.W. 1 who issued Ext. I on instruction of the defendant. In the said letter/notice (Ext. I) it was specifically stated :

'That my client admits her liability to pay the sum of Rs. 10,000/- to your client on account of mortgage loan. Your client knows that my client is now in extreme financial difficulties. Her husband and son also have no good business, and as such, it is not possible on her part to pay up the amount as demanded. My client already requested your client locally to allow her one year's time to pay up the dues.'

10. Learned Single Judge also considered the other evidence on the plaintiff s side and also the evidence adduced in support of contentions of the defendant. As regards the ignorance of defendant No. 1 relating to contents in the mortgage deed, the evidence of P.W. 3 was duly considered by the learned Court. It was found in the evidence of PW 3 who stated in his evidence that he read over and explained the mortgage deed to her before she executed it Therefore, the preponderance

of the evidence convinced the learned Single Judge that the plaintiff could prove the case as narrated in the plaint and that the learned trial Court was justified in decreeing the suit Consequently, the learned Single Judge accepted the findings of the learned trial Court and dismissed the first Appeal of the defendant-appellant.

11. Mr. D. N. Baruah, learned counsel for the appellant faced difficulties to submit on facts as well as on legal points in assailing the judgment of the learned Single Judge. On the face of the clear and reliable evidence on record both oral and documentary, Mr. Baruah could not convince us that factually the learned Single Judge was incorrect to affirm the decree as passed by the learned trial Court Mr. Baruah, learned counsel for the appellant has confined his argument only on the following two grounds :

(A) That the learned Single Judge erred in law to uphold the decree of the learned trial Court in awarding interest at the rate of 12% per annum on the principal amount and, therefore, the same is liable to be set aside. It was against the provisions of law as laid down in Assam Money Lenders Act 1934 as amended and under Order 34, Rule 11 of C.P.C.

(B) That the preliminary decree passed by the trial Court awarding interest at the rate of 12% per annum on the amount of Rs. 19,800/- and on the cost of Rs. 2075.33 paise (being the decretal amount) from the date of institution of the suit till realisation is untenable being against the provision of law.

These are the two legal points which have been agitated before us by Mr. Baruah. Though Mr. Baruah made an attempt to place before us certain facts relating to the above two points, he could not convince us on the face of the positive findings of the two Courts based on appreciation of evidence on record.

12. We have also heard Mr. B. K. Goswami, learned counsel for the respondent who has submitted that there was no bar in awarding interest from the date of institution of the suit till realisation on the principal amount and its interest along with the cost at the said rate as awarded by the learned trial Court. It is further urged by Mr. Goswami that the learned Single Judge considered this aspect of the matter but found no material to interfere with the same though agitated by the appellant.

Basing his contentions on the above two

legal points, Mr. Baruah, the learned counsel for the appellant has drawn our attention to the provisions of Section 34 and the provisions of Order 34 Rule 11 of the Civil P.C. and submitted that it was obligatory on the part of the Court below to consider the provisions of law in assessing the amount of interest while awarding the interest on the amount claimed by the plaintiff in such nature of the suit. Section 34 of the Code runs as follows :

'34. Interest. --(a) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, (with further interest at such rate not exceeding six per cent, per annum as the Court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.

(2) Where such a decree is silent with respect to the payment of further interest on such principal sum from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie.'

We also quote hereunder the provisions of Order 34, Rule 11 of the Civil P.C.

'11. Payment of interest. -- In any decree

passed in a suit for foreclosure, sale or

redemption, where interest is legally

recoverable, the Court may order payment

of interest to the mortgagee as follows,

namely --

(a) interest up to the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage --

(i) on the principal amount found or declared due on the mortgage, -- at the rate payable on the principal, or, where no such rate is fixed, at such rate as the Court deems reasonable,

(ii)*** *** ***

(iii) on the amount adjudged due to the mortgagee for costs, charges and expenses properly incurred by the mortgagee in respect of the mortgage-security up to the date of the preliminary decree and added to the

mortgage-money, at the rate agreed between the parties, or, failing such rate, at such rate not exceeding six per cent, per annum as the Court deems reasonable; and

(b) subsequent interest up to the date of realisation of actual payment on the aggregate of the principal sums specified in Clause (e) as calculated in accordance with that clause at such rate as the Court deems reasonable.'

13. On bare perusal of Rule 10 of Order 34 Civil P.C., it is clear that the Court can award interest 'at the rate agreed between the parties' as stipulated in the deed. Therefore, where there is a stipulated rats of interest, the Court is ordinarily bound to decree interest at the rate till the date fixed for payment of the decretal amount, unless it is penal or is excessive and the transaction is substantially unfair or is contrary to any law. In the deed of Mortgage (Ex. 6), the rate of interest was fixed at 12 per cent per annum and in case of her failure to repay the amount or part thereof within the time stipulated, interest at the aforesaid rate will run thereon. It is not denied by the appellant that she did not repay the loan or any part thereof till now. Therefore, there is no illegality in awarding interest @ 12% per annum on the loan amount as per stipulated terms in the deed and as decreed by the Court below and affirmed by the learned Single Judge of this Court. We do not find any substance in this appeal. However, keeping in view the provisions of Section 34 of the Civil P.C., we direct that the decretal amount shall bear interest @ 6% per annum only from the date of decree till realisation.

With the above modification of the amount of interest, we affirm the judgment and decree of the learned Single Judge of this Court.

In the result, the appeal stands dismissed. However, the parties shall bear their own costs in this appeal.

Lahiri, C.J. (Actg.)

14. I agree to the conclusion reached by my learned and noble brother that the appeal should be dismissed. The decision deals with a very sensitive branch of jurisprudence -- justice to women, equity, legal protection and legal aid. I would like to add a few words to the enlightened judgment prepared by my learned brother.

15. The appellant-mortgagor is said to be a pardanashin lady. She executed the

registered deed, not on commission but in the registration office, aided and assisted by and in presence of her husband and son. Her husband is a contractor, a literate person, so was her son who could read, write and explain; the contents of documents. The husband and the son attested the document as witnesses and were present throughout the registration proceedings.

16. Application Of A Century Old Principle In An Enlightened Era :

We have applied a century old principle in the instant case. The principle is that whenever an instrument is executed by a pardanashin lady it must be clearly proved by the other party that the executant, parda woman, was free agent and understood the nature and effect of the instrument she executed. The lady is town-bred and we are applying the principle in an enlightened age when India has progressed so much. In Kharbuja Kuer v. Jang Bahadur, AIR 1963 SC 1203, the Supreme Court has laid down that the principles are applicable subject to the modification of the rule in Farid-Un-Nisa v. Mukhtar Ahmed, 52 Ind App 342 : (AIR 1925 PC 204), The true principle of the burden of proof applicable in the case of a document executed by a pardanashin lady has been stated by the Supreme Court thus (at P. 1206):

'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 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 Hem Chandra v. Suradhani Debya, AIR 1940 PC 134. 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 proving that the document was

explained to her and that she understood it, but also other evidence, direct and circumstantial.'

17. It is thus seen that the burden is upon the person who seeks to sustain a document executed by a pardanashin that she executed it with a true understanding mind. However, proof of the fact that it has been explained to her is not the only mode of discharging the burden. The fact whether she voluntarily executed the document or not can be ascertained from other evidence, direct and circumstantial. Once it is established that the execution was not merely her physical act but also her mental act the burden is discharged. The burden may be discharged by proving that the document was explained to her and that she understood the nature and contents of the document and/or by other evidence.

18. Necessity For Providing Protective Shield To Parda Women :

Indeed there was a time when the position of pardanashin or secluded lady was to a large extent one of isolation and subserviency. They were shut up in the zanana, had no communication, except from behind the parda or screen, with any male, save a few privileged relatives. They were thus considered to be liable to pressure and influence. They had no education and worldly knowledge being shut up behind the screen. As such, it was the judiciary which evolved that such women were entitled to receive that protection which the Court of Chancery always extended to the weak, ignorant and infirm, and to those who for any other reason were specially likely to be imposed upon by the exertion of undue influence over them. The principle was based on the provisions contained in Section 111 of the Evidence Act. However, in my opinion, the principle does not strictly come within the fold of the Section 111 of the Evidence Act The exertion of undue influence over 'parda women' is presumed to have been exerted and, therefore, it has been ruled that in all dealings with those persons who are so situated, it was always incumbent on the person who is interested in upholding the transaction to show that its terms were fair and equitable. The protection afforded in those instances is distinct and separate from the principles contained in Section 111 of Evidence Act, which to my mind strictly apply only to the case of the transactions where one party is in relation of active confidence. However, whenever a party seeks to sustain a document executed

by a parda lady, the Court must be satisfied, no matter whether the other party stands in a position of active confidence or not, that the transaction was explained to her and that she knew what she was doing.

19. There can be no wrangle that the principle is proprio vigore applicable to parda women, as this is the law laid down by the Supreme Court. However, the continuance of the principle is a bitter sweet memory and the sooner we get rid of the principle the better for our women. But before that all must make women equal to men and remove all 'parda' of illiteracy and ignorance. It is only in recent years that we have recognised women's claim to equality and something is being done, may be too little. I feel that some thoughts and more money are necessary to actualise the relief to our womanhood. Justice of women's claim to equality is being realised which is one of the most modern and most significant revolutions of our time, which has tremendous potentialities for our civilization. Indeed, it is surprising to recall that some 2004 years back Plato vehemently asserted that there should be such equality. Women in India were kept in strict seclusion. They were kept secluded. They lived behind the parda, lived in isolation and subserviency. Since independence some thoughts have been given and some moneys are expended for their progress. Things are changing fast. Our women fly aircrafts, drive cars, work alongside men in all tasks. They share in the care of Governments. They are being educated in the same way as men, the girls go to school and study with boys. They go to college and study together, become competent doctors, lawyers, writers, directors of companies and what not. Plato's ideals are substantially attained. However, as long as this principle lasts we must Carry a depressed feeling that there is a class of women who due to social conditions have been kept ignorant, illiterate, weak and infirm so much so that we are to assume that they are likely to be imposed upon or influenced by exertion of undue influence over them. In place of the protective shield let grow literate, firm and strong Indian women. Let the protective shield be replaced by 'healthy minds' in healthy bodies, mens sana in corpore sano.

20. What Is The Position Of The Present Day Urban Pardanashin Ladies? Do They Stand In The Same Position With Those Of Pardanashins?

All town-bred ladies, inparda or not, know

that physician should be called when there is illness in the house. Almost all know that when a legal document is to be executed lawyer should be consulted. There may be quasi pardanashin ladies in urban areas but all of them know the necessity of taking lawyer's aid in transacting documents. The position is changing fast and as such the application of the principle should be confined to real pardanashin ladies who are really ignorant, infirm and illiterate living in seclusion behind the parda. I am, therefore, of the opinion that principle enunciated should be applied to all pardanashin women who ' are really pardanashin.

21. Should We Deny The Protective Umbrella To Rustics, Who Are Ignorant, Infirm, Illiterate Of Semi-Literate?

They are more likely to be imposed upon by the exertion of undue influence over them. They have pardas illiteracy and ignorance. Indeed, they may not be physical pardas but surely they are mental 'pardas'. Due to ignorance, illiteracy and simplicity they should also be treated in the same class. Do they stand on a better footing than rich pardanashin women? Until their pardas are removed and they are made equal to the rest of the people the principles which are being applied in the Court of Chancery, that is, the protection to all weak, ignorant and infirm persons should also be extended to our rural population who are weak, ignorant and infirm. They are also likely to be imposed upon, influenced by the exertion of undue influence over them. Uneducated or Semi literate working women, are more susceptible to exertion of undue influence. Many of them have lost everything. Many more are losing every day. In my opinion the ignorant rustics who have no knowledge about the implication of legal documents should have the same protection which is being afforded to the rich pardanashin women. It is high time that all should do something positive and affirmative in this constituency as well. It is for consideration whether the provisions of Section 111 of the Evidence Act, the provisions of Section 114 illustration (c), Section 16 of the Contract Act, 1872 and Section 118 of the Negotiable Instruments Act, 1881 need be suitably amended and the principles applicable to pardanashin ladies should be expressly made applicable to the weak, ignorant and in firm, and to those who for any other reason are specially likely to be imposed upon by the exertion of undue influence over them.

22. Immediate Relief To The Weak, Ignorant And Infirm Persons :

Legal Aid Implementation Committees or Boards can extend their services to them. One of the objectives of the legal-aid is the communication of law to the poor, needy, illiterate and semi-literate, making legal service available to the community at the door steps. Is not it high time that Legal Aid Entitlement Centres in key rural and urban areas should be opened throughout the country to look after and take care of the parties to such instruments who are ignorant, illiterate or semi-literate or who do not have appropriate legal knowledge and legal education? If such documents are executed after consultation with the Legal Aid Entitlement Centre there will be a stamp of good faith in the transaction. It may remove the age-old morbid principle. The Legal-aid Centres should also try to eliminate bad faith in all such transactions and resist exploitation of the poor as well as the rich pardanashins.

23. I agree with my learned brother that the plaintiff has discharged his burden by direct as well as circumstantial evidence. I also agree that the plaintiff is entitled to interest @ 6% per annum from the date of decree till realisation and the Judgment and decree should be modified to that extent, and, that with the modification of the decree relating to the award of interest under Section 34 of the Civil P. C., the appeal should be dismissed and the parties should bear their respective costs.


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