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Suraj Prasad Vs. Mt. Makhna Devi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1946All127
AppellantSuraj Prasad
RespondentMt. Makhna Devi and anr.
Excerpt:
.....property she bad acquired in order to liquidate her obligations to him. it seems evident that she was very well able to look after her own interests and that she had no hesitation in defending them when it suited her purpose. we cannot, therefore, presume that she wrote out and signed the acknowledgments merely because nifikir earn told her to do so without having satisfied herself that the charges were fair. makhna devi acted with her eyes open and that she knew very well what she was doing when she made the acknowledgments. we are satisfied that his conclusions on these points are right and therefore if we were to hold that the books did not represent the true fact we should have to hold that suraj prasad had from the very beginning entered upon a course of conduct with the intention..........out of a suit in which the appellant, suraj prasad, was the plaintiff and the respondents, mt. makhna devi and mt. shyama, were the defendants. the plaintiff sought to recover a sum of rs. 27,210-13-3 with the pendente lite and future interest from mt. makhna devi. this sum of money according to him consisted of certain sums advanced from time to time to mt. makhna devi with interest at the rate of 12 per cent, per annum up to 3rd november 1934. the learned judge of the lower court gave the plaintiff a decree for rs. 10,106-3-2 with pendente lite and future interest at 3i per cent, per annum against mt. makhna devi and against the estate of her deceased husband, deo narain. suraj prasad claims the balance in this appeal. mt. makhna devi has not appealed upon the ground that no money.....
Judgment:

Allsop, J.

1. This appeal arises out of a suit in which the appellant, Suraj Prasad, was the plaintiff and the respondents, Mt. Makhna Devi and Mt. Shyama, were the defendants. The plaintiff sought to recover a sum of Rs. 27,210-13-3 with the pendente lite and future interest from Mt. Makhna Devi. This sum of money according to him consisted of certain sums advanced from time to time to Mt. Makhna Devi with interest at the rate of 12 per cent, per annum up to 3rd November 1934. The learned Judge of the lower Court gave the plaintiff a decree for Rs. 10,106-3-2 with pendente lite and future interest at 3i per cent, per annum against Mt. Makhna Devi and against the estate of her deceased husband, Deo Narain. Suraj Prasad claims the balance in this appeal. Mt. Makhna Devi has not appealed upon the ground that no money was due from her but she has put in a cross-objection upon the ground that she was entitled to certain benefits under the provisions of the Agri. culturists' Relief Act.

2. In order to explain the circumstances in which the advances are alleged to have been made by Suraj Prasad to Mt. Makhna Devi we must describe the relationship between the parties and certain transactions which occurred. We have already mentioned that Mt. Makhna Devi was the widow of Deo Narain. This Deo Narain had four brothers, Ram Narain, Ram Das, Parshotam Das and Raghunandan Prasad. Raghunandan Prasad had died before the year 1923 leaving a widow, Mt. Sampatti. In 1923 Ram Das and Parshotam Das instituted a suit for partition of the family property against Deo Narain and Ram Narain. Deo Narain was impleaded as a person of unsound mind under the guardianship of Mt. Makhna Devi. The defence in the suit was that Ram Das and Parshotam Das had converted a large part of the family property to their own use and that they should account for it. In the result a preliminary decree for partition was passed with a direction that Ram Das and Parshotam Das should render accounts of the property which they had converted to their own use. Up to the stage of the preliminary decree Mt. Makhna Devi and Ram Narain had acted in concert, but after the decree was passed Mt. Makhna Devi claimed the separation of her husband's share from the share of Ram Narain. Ram Narain objected to this claim and there was considerable further litigation but eventually Mt. Makhna Devi succeeded and in the final decree there was a direction that a sum of Rs. 98,000 should be paid in equal shares to her and Ram Narain. There had been two appeals, No. 61 of 1924 and No. 341 of 1925, the first by Ram Das and Parshotam Das and the second by Ram Narain. We may mention that Deo Narain had died while these proceedings were in progress aad after the final decree LachhmLNarain, the son of Ram Narain instituted another suit, No. 46 of 1929 in order to obtain a declaration that Deo Narain and Ram Narain had been members of a joint Hindu family and that Deo Narain's property had passed by survivorship to him and his father and that Mt. Makhna Devi had no life interest in it. The suit failed in spite of an appeal No. 355 of 1930 instituted by Lachhmi Narain. The plaintiff, Suraj Prasad, is the son of Bhagwan Das who was the first cousin of Deo Narain and his brothers. This Bhagwan Das was also married to Mt. Makhna Devi's sister. When Mt. Makhna Devi quarrelled with Bam Narain she left his house and went to live with the plaintiff. It is admitted that the plaintiff assisted her in conducting the litigation which we have mentioned. He certainly made all the payments necessary to meet the expenses of the litigation, but Mt. Makhna Devi's case was that she had a considerable sum in cash and a large number of valuable ornaments and that she had met, the expenses by making payments out of the cash to Suraj Prasad and by converting her jewellery into money which she had delivered to him. The learned Judge of the Court below found that it was not established that Mt. Makhna Devi had delivered any cash or ornaments or the value of any ornaments to Suraj Prasad. The only evidence upon this point is Mt. Makhna Devi's own statement and it has not been argued before us that her case is established. Indeed in the absence of any appeal on her behalf that no decree should have been passed against her it may be said that she has accepted the learned Judge's finding.

3. In addition to the advances made for the purposes of the litigation, it was alleged by the plaintiff that he had spent other sums of money on Mt. Makhna Devi's account. There were expenses of some mutation cases, payments made to Mt. Sampatti on account of a decree for a maintenance which she had obtained, expenses in defending a case filed by a certain Arya Sabha, some expenses in a profits case, some expenses in a case under the Encumbered Estates Act, expenses in a case for the partition of zamindari villages, expenses in suits for the recovery of arrears of rent, expenses in connection with an application for the execution of a decree and in a suit filed by one Ganesh Prasad, expenses in connection with the marriage of Mt. Shyama who was the daughter of Mt. Makhna Devi and of Deo Narain, expenses in connection with the funeral ceremonies of Deo Narain, certain expenses incurred for the education of Jwala Prasad who was married to Mt. Shyama, certain sums taken by Mt. Makhna Devi for her daily expenses and sums expended on the salaries of Mt. Makhna Devi's servants. The plaintiff produced his books of account showing the expenditure incurred and relied very largely upon the fact that Mt. Makhna Devi had acknowledged the correctness of the accounts from time to time in writing. These acknowledgments were inscribed in the books in the years 1927, 1929, 1930, 1931, 1933, 1934 and 1936. In each case the acknowledgments are in the handwriting of Mt. Makhna Devi herself and stamped and signed by her. The last acknowledgment was to the effect that a sum of Rs. 27,210-13-3 was the balance due and that it was correct. The other acknowledgments are in the same terms although the sums acknowledged are, of course, different., They increased from Rs. 2606-8-6 due on 16th April 1927 to the sum which we have already mentioned which was due on 20th August 1936 and which is the sum claimed. Interest was included from time to time up to 3rd November 1934, but after that date no interest was included in the account.

4. The learned Judge has found that these acknowledgments must be completely ignored because Mt. Makhna Devi is a pardanashin woman who was in a position to be influenced by Suraj Prasad and because there was no satisfactory evidence to establish that the accounts had been explained to her on each occasion when she wrote and signed an acknowledgment that a balance was due. Having reached this conclusion he went on to say that the entries in the account books were themselves not sufficient to attach any liability to Mt. Makhna Devi and he consequently gave a decree only for those sums of money which were proved to have been spent on her account by other evidence or could be inferred to have been spent on her account in view of admissions made by her. He ignored the fact that Suraj Prasad had entered the witness-box and had deposed that all the items in the account books represented sums which had been actually paid. The account books were written partly by Suraj Prasad and partly by a munib who was examined as a witness but who could not, of course, say that the payments had been made. Suraj Prasad was not cross-examined upon his statement that the payments had been made in fact and the circumstances suggest that he was the man who held the money and who would have made the payments. In these circumstances, it has not been shown that his evidence that the payments were made was not based upon personal knowledge. It seems to us, therefore, that the learned Judge was not justified in acting upon the technical ground that the account books were no evidence to attach a liability to Mt. Makhna Devi. They could be used to corroborate the oral statement of Suraj Prasad that the payments had been made. Individual items were not put to Suraj Prasad so that it could be shown that his evidence about any of them was based on hearsay.

5. We consider also that the. learned Judge has gone too far in discarding absolutely the evidence of the acknowledgments. The plaintiff alleged that Mt. Makhna Devi had been assisted from time to time by her brother, Nifikir Ram, and her son-in-law Jwala Prasad, and that these men had kept a separate set of accounts on her behalf. (After examining the accounts his Lordship proceeded.) In our judgment the learned Judge has extended unduly the rule for the protection of pardanashin women. The general principle is that a person is bound by any deed which he has executed, if execution is proved, unless he can show that his signature was procured by fraud or misrepresentation or the exercise of undue influence. The presumption is that a person who executes a document has taken the trouble to ascertain its contents and purport. The special rule for pardanashin women is that this presumption does not operate against them and that there must be some positive reason for holding that they have ascertained and understood the contents of a deed before they have executed it and that they have exercised their independent judgment in order that they should be bound by it3 provisions. There is a distinction between deeds and documents which contain admissions because an admission is merely a piece of evidence and it can be rebutted whether the person who has made it is a pardanashin woman or somebody else. It may perhaps be assumed that a pardanashin woman would not be bound by an admission unless the Court had positive reason for thinking that she had understood its meaning but, however to A may be, the rule protects pardanabhin womea only to the extent that it cannot be presumed that they have ascertained the meaning of any document which they have signed. In the case before us, the acknowledgments are in the handwriting of Mt. Makhna Devi herself so that there can be no doubt that she knew what had been written. The phrases are of the simplest possible kind and there could be no need for further explanation. It is not possible to explain a statement which is already in the simplest form. It is impossible to believe that Mt. Makhna Devi did not understand the purport of the words which she was writing. The learned Judge seems to have thought that the acknowledgments could not be used as evidence against her unless it was shown that she had, aa it were, audited the accounts, that is, that she had seen every item and had been satisfied by means of vouchers that it represented a real payment on her account. We do not think that it would be necessary to go as far as that. It was sufficient that Mt. Makhna Devi should realise that she was required to verify the accuracy of the accounts and that the accounts were before her so that, she could examine any particular item which she wished to check. Up to the year 1929 and possibly thereafter she had her own separate books and it would have been sufficient for her to compare the balances in those books with the balances in the books produced by the plaintiff. As we have already said, these acknowledgments amount only to admissions which can be used as evidence against Mt. Makhna Devi and it was open to her, if she so wished to establish that she had made an acknowledgment of any particular item by inadvertence and that the money was not in fact due. No attempt of this kind was made in the court below. We have been taken through the accounts in a general way and it has been established to our satisfaction that none of the items is such as to arouse any suspicion that it was not expended or that it was expended for some purpose in which Mt. Makhna Devi was not interested. In so far as litigation is concerned not only the main litigation but the profits cases and other proceedings in court, the learned Judge has for the most part allowed the plaintiff only those sums which were included in the decrees or orders for costs with which the proceedings terminated or in receipts furnished by counsel.

6. Nobody can doubt that it is necessary to expend sums other than those which can be taxed in a decree or order. In some in-stances counsel were engaged but their fees have not been included in the costs possibly because no certificates of payment were filed at the proper time. In other cases there must have been expenses incurred by employees of Mt. Makhna Devi's or Suraj Prasad's who travelled to various places in order to obtain documents or instruct counsel or perform other duties in connection with the cases. (After going through the incidental expenses incurred his Lordship concluded.) On the whole we have come to the conclusion that the accounts which were regularly kept are trustworthy and that: the learned Judge's technical reason for refusing to rely upon them is not a sound one. If there had been no other evidence he would have been right in saying that he could not pass a decree upon the accounts but since we have the definite evidence of Suraj Prasad and the admissions of Mt. Makhna Devi that technical objection disappears. We are left with the fact that there is evidence corroborated by the books and that an examination of the individual items does not in any way suggest that there were any interpolations or inaccuracies.

7. The learned Judge has also disallowed all interest upon the ground that there was no evidence that Mt. Makhna Devi has agreed to pay it. We find, however, that items of interest were included in the accounts when the acknowledged their accuracy and that seems to us in the absence of any other evidence to constitute a sufficient reason for allowing interest. As we have already said interest was not allowed after 3rd November 1934. Learned Counsel has suggested that this points to the conclusion that there was no agreement to pay interest, but we think on the other hand that it suggests that there had been an agreement to pay interest but that the plaintiff consented not to charge it after a certain date when the debt had become large.

8. The learned Judge of the Court below was largely influenced in his decision to ignore the acknowledgments by his opinion that the plaintiff combined in himself the position of a near. relation and protector and a financier and trusted agent and that this fact must have clothed him with enormous influence and authority over the lady. Judging from Mt. Makhna Devi's history we consider that she was not a person who would have allowed the plaintiff in any circumstances to impose upon her. She was living with her husbands' brother Earn Narain when she insisted that her husband's share should be separated from his. When she quarrelled with him upon this point, she had no hesitation in leaving his house and going to the house of the plaintiff. The learned Judge has remarked that she had two uncles besides Nifikar Earn but none of them seemed to have offered her protection or assistance. We can see no basis for this conclusion. There is nothing to show that she herself did not choose to go to the plaintiff rather than to any of her uncles. Now that she has succeeded in the cases in which the plaintiff was assisting her she has had no hesitation in repudiating her obligations to him and has left his house and is living elsewhere. She has acquiesced in the decree passed by the lower Court against her and consequently it must be assumed that she owed the plaintiff at least Rs. 10,000 which she refused to pay. She herself has said that she lost confidence in him and left him because he wished her to transfer to him some of the property she bad acquired in order to liquidate her obligations to him. It seems evident that she was very well able to look after her own interests and that she had no hesitation in defending them when it suited her purpose. In our judgment it is an exaggeration to say that the plaintiff must have had enormous influence and authority over her. As we have already said, we have examined the accounts and we can find no item to which she could reasonably have raised any objection. We cannot, therefore, presume that she wrote out and signed the acknowledgments merely because Nifikir Earn told her to do so without having satisfied herself that the charges were fair. Courts must be careful to see that pardanashin women are not imposed upon, but at the same time they must not apply such strict rules that these women are deprived of the right of dealing with their own property and their own affairs in such manner as they choose. Adult pardanashin women of sound mind are sui juris and they must not be treated as though they were minors and were incapable through mental deficiency of conducting their own business. We have no doubt that Mt. Makhna Devi acted with her eyes open and that she knew very well what she was doing when she made the acknowledgments.

9. The learned Judge has held that the books of account were regularly kept and the acknowledgments were made on the dates when they purported to have been made. The books were produced from time to time before officials of the Income-tax Department and there is no trace of any fabrication of the books. We are satisfied that his conclusions on these points are right and therefore if we were to hold that the books did not represent the true fact we should have to hold that Suraj Prasad had from the very beginning entered upon a course of conduct with the intention ultimately of charging Mt. Makhna Devi with liabilities which she had not properly incurred. In our judgment there is nothing in the evidence which would justify us in coming to this conclusion.

10. Mt. Shyama has not appealed against the decree which has been passed by the learned Judge, but it is urged on her behalf that any additional sum which we decree should not be charged against the estate because there is nothing to show that the money was advanced to Mt. Makhna Devi otherwise than' in her personal capacity. Learned Counsel has referred us to the cases in Dhiraj singh v. Manga Ram ('97) 19 All 300, Ramaswamy Mudaliar v. Sellattammal ('82) 4 Mad. 375, Kallu v. Faiyaz Ali Khan ('08) 30 All. 394, and Kishan Devi v. Chand Mal : AIR1934All423 , but he has very frankly admitted that the decision in Parathnath v. Rameshwar Pratap sahai : AIR1938All491 is against him. The first two cases upon which he has relied may or may not have been rightly decided, but they turned upon a point which cannot be raised in the case before us. They were cases in which the widow had died after incurring a debt which was not secured on the estate and suits were instituted against the reversioners to recover the money. We do not know what the result might have been if the plaintiff had alleged that the widow had incurred the debt in her capacity as the manager for the time being of the estate of her deceased husband and had sued the reversioners in their capacity as her successors in the management. It appears that the suits were instituted against the reversioners to enforce a personal liability incurred by the widow and the learned Judges took the view that the reversioners were not liable because they were holding the property as successors not of the widow but of the last male owner. In the absence of a mortgage or a hypothecation the plaintiff could not proceed against the property.

11. In the last case on which learned Counsel relied the widow had also died before the suit was instituted. The case in Kallu v. Faiyaz Ali Khan ('08) 30 All. 394 purported to be based upon the decision in Dhiraj singh v. Manga Ram ('97) 19 All 300, but we must say with the greatest respect that the latter decision was not in point and we prefer to follow the later decision in Parathnath v. Rameshwar Pratap sahai : AIR1938All491 . It may be argued that reversioners are in much the same position as subsequent transferees and that the plaintiff cannot follow the property in their hands in order to recover sums due from the widow unless the property has been mortgaged or charged in some way, but even if that is so, it does not affect the result of the suit with which we are concerned. If the widow had voluntarily alienated the estate or any part of it in order to discharge her obligations to the plaintiff the reversioners could not have objected because it is sufficiently clear that the litigation was for the purpose of protecting Deo Narain's separate estate and if Mt. Makhna Devi had not spent the money which she borrowed from the plaintiff there would have been no estate to which the reversioners could have succeeded. The other litigation in the matter of profits suits and so forth was connected with the estate. The sums spent on the funeral of Deo Narain and the marriage of Mt. Shyama were certainly spent in accordance with legal necessity. There has been some argument upon the sums expended on the education of Jwala Prasad. These constitute a very small part of the debt and whatever the other reversioners might have to say upon the point it seems to us that it is not open to Mt. Shyama herself to question these items which were spent in her interests. The property was still in the hands of Mt. Makhna Devi when the suit was instituted and when the decree of the lower Court was passed and consequently we are of opinion that it could rightly be attached and sold in execution of the decree. If the property had been sold the reversioners could not have questioned the sale any more than they could have questioned a voluntary alienation in order to discharge the liability.

12. As it appears that the property is still in the possession of Mt. Makhna Devi we think that a decree for any further sum which we may pass can equally be executed against her husband's property in Mt. Makhna Devi's possession. The question would not really arise if Mt. Shyama was not a party to these proceedings, but as she was impleaded on her own request and has raised the point we have decided it.

13. Mt. Makhna Devi claimed relief under the provisions of the Agriculturists' Relief Act. Her claim has been rejected by the learned Judge of the Court below. It is unnecessary to consider whether the claim was rejected on adequate grounds because the Agriculturists' Relief Act has now been re-pealed and if she is entitled to any relief it is under the provisions of the Debt Redemption Act which are in force now that we come to pass a decree against her. The question whether she is entitled to relief under this Act depends upon the amount that she pays by way of local rate. We gave her an opportunity to produce evidence upon this point. No evidence was produced. Learned Counsel for the parties had obtained instructions from their clients. They were agreed about the local rates payable on all the villages except Dandi. If the local rates payable on the village of Dandi were excluded Mt. Makhna Devi would undoubtedly have been entitled to relief. Learned Counsel on her behalf alleged that she had alienated this village in the year 1941, but as the question would turn upon her status at the date when the Debt Redemption Act was passed, this alienation does not affect the issue. According to learned Counsel for the opposite party the local rate payable on Dandi if added to the local rates payable on the other villages would bring the total to something in the neighbourhood of Rs. 150 and in that case Mt. Makhna Devi would not be an agriculturist for the purposes of the Debt Redemption Act. Learned Counsel for Mt. Makhna Devi stated that he had no information about the cess payable on this village. It appears that there was a partition in the year 1941 and that a number of villages including Dandi were allotted to Mt. Makhna Devi as her one-fourth share in the whole property which consisted of thirteen villages. As the partition took place after the Debt Redemption Act came into force the amounts of cesses payable by Mt. Makhna Devi for the purpose of deciding whether she is entitled to relief cannot be calculated on the villages separately allotted to her but it may be assumed that her share in the joint property was approximately equivalent to the separate property allotted to her and consequently that the amounts of cesses payable on her share were considerably more than Rs. 100. The burden of proof was on Mt. Makhna Devi and she has failed to show that the amount of cess payable by her at the relevant date was less than Rs. 100. In these circumstances we hold that she is not entitled to relief.

14. The result is that we allow this appeal and pass a decree in favour of the plaintiff for the recovery of the sum of Rs. 27,210-13-3 with pendente lite and future interest at the rate of 3 1/4 per cent, per annum. The decree is passed against Mt. Makhna Devi and against the estate of her husband. The amount decreed by the lower Court will be charge upon that part of the estate which was in Mt. Makhna Devi's possession at the time of the lower Court's decree and the additional amount decreed by us will be a charge upon the estate of her husband in her possession at the date of our decree. The plaintiff will get his costs in both Courts from Mt. Makhna Devi and from that portion of her husband's estate in her possession at the date of our decree. Mt. Shyama and Mt. Makhna Devi will bear their own costs.


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