Skip to content


Behari Lal Vs. Habiba Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All267
AppellantBehari Lal
RespondentHabiba Bibi and ors.
Excerpt:
.....a few privileged relations or dependants; 324 which was also a case in which a muhammadan pardah-nashin lady was concerned their lordships made observations which seem to me to be very pertinent to cases like the present. 327): it is incumbent on the court, when dealing with the disposition of her property by a pardah-nashin woman, to be satisfied that the transaction was explained to her, and she knew what she was doing, and especially so in a case like the present where, for no consideration, and without any equivalent, this lady has executed a document which deprives her of all her property......show the manner in which their lordships have from time to time applied the doctrine of equity to pardah-nashin ladies. the leading case upon the subject is bazloor huheem v. shumsoonnisa begum 11 moo. i.a. 551 : 8 w.r. p.c. 3 where their lordships made the following observations (p. 585)--'the attorney-general, indeed, argued that a distinction is to be drawn in this respect between a muhammadan and a hindu woman; nay, that in all that concerns her power over her property, the former is by law more independent than an english woman of her husband. it is no doubt true that a musulman woman, when married, retains dominion-over her own property, and is free from the control of her husband in its disposition; but the hindu law is equally indulgent in that respect to the hindu wife. it may.....
Judgment:

Straight, Offg. C.J.

1. This was a suit brought, by the plaintiff Behari Lal upon a bond, dated the 16th of September 1873 for Rs. 6 700, Purporting to have been executed by one Rafi-ud-dm, for himself and for hi, w.e., Habiba Bib. and by one Nurul Hasan on behalf of his wile Salima Bibi. The two ladies were the daughters of Fakhr-ud-din Ahmad, and Rah-ud-dm was his neuhew, and the property said to have been charged admittedly came to the hands of the obligors upon the death, of Fakhr-ud-din to whom it had belonged. The bond of the 16th of September 1873, was, as I have said, not signed by either Habiba Bibi or Sahma Bib and it we subsequently presented for registration by one Maula Khan, who professed to be authorized in that behalf by a power-of-attorney, dated the 17th September 1873. Now the bond can only be given in evidence and held to be binding against the ladies, qua their immoveable property charged therein, if it was duly registered, and the question whether it was so registered turns upon whether the power-of-attorney was in fact made by them, with their conscious consent and lull knowledge and comprehension of what they were authorizing Maula Khan to do. The Subordinate Judge has found that the bond to the plaintiff was not proved to have been executed with toe knowledge of the ladies; that they are not shown to have benefited by it in any way; and, as I understand him, he also rejected the power-of-attorney as not binding on them.

2. It is upon this latter point that I am prepared to deal with the appeal and dispose of it Now there can be no doubt--and many Privy Council rulings are to be found approving the principle--that in cases such as that before me, in which the interests of pardah-nashin women are concerned, those who seek to affect them with liability under an instrument of the kind sued on here, are bound to prove that they had knowledge of the nature and character of the transaction into which they are said to have entered, that they had some independent and disinterested adviser in the matter, and that they put their hands to the document relied on, or authorized some other persons to execute it for them, fully understanding what they were about in doing so. the present case all that the plaintiff has proved by one witness, Imam-ud-din, is that upon a particular day he went to the residence of the ladies, with whom he was not personally acquainted, nor did he know their voices He says there were two women behind a purdah who were sale by their husbands, Rafi-ud-din and Nurul Hasan, to be their respective wives, and that these persons ackowledged they had made the power-of-attorney Now I will go the length of saying that even if the ladies behind the pardah were in fact the two defendant Musammats, I should not, in reference to the principles already enunciated, be prepared to hold that this is enough to bind them. I think it was for the plaintiff--who is seeking to bring their property to sale on the strength of a transaction with these two pardah-nashin. Indies--to show that they were free agents in the matter, and, having a dear knowledge of what they were doing, accorded their consent to it. This, in my opinion, he has wholly failed to do, and, under such circumstances, I think the lower Court was right in dismissing the suit, and I therefore dismiss the appeal with costs. With regard to the application made to-day for the admission of the mukhtarnama, which was rejected below, it is unnecessary to say more than that I have dealt with the case as if it were in evidence.

Mahmood, J.

3. I am of the same opinion. I entirely concur with the learned Chief Justice in his estimate of the evidence. It is an estimate which I, from my acquaintance with the facts of Muhammadan life to which it refers, accept as in keeping with the rulings of the Privy Council in such matters, which have done for the pardah-nashm women what their life requires, which is, that they should be placed, by analogy, on a footing somewhat similar to that of persons non compotes mentis. The doctrines of equity which relate to such persons have been stated in Section 228 of Story's work on Equity Jurisprudence, where it is laid down that Courts of Equity deal with the subject, upon the most enlightened principles, and watch with the most jealous care-every attempt; to deal with persons non compotes mentis. Wherever, from the nature of the transaction, there is not evidence of entire good faith (uberrimoe fidei), or the contract or other act is not seen to be just in itself, or for the benefit of these persons, Courts of Equity will set it aside, or make it subservient to their just rights and interests.' I desire to embody this passage in my judgment for the benefit of the subordinate Courts, to which,, generally speaking, such works as Story's are not accessible; and for the same-reason I wish to read certain passages from the judgments of the Lords of the Privy Council in order to show the manner in which their Lordships have from time to time applied the doctrine of equity to pardah-nashin ladies. The leading case upon the subject is Bazloor Huheem v. Shumsoonnisa Begum 11 Moo. I.A. 551 : 8 W.R. P.C. 3 where their Lordships made the following observations (p. 585)--'The Attorney-General, indeed, argued that a distinction is to be drawn in this respect between a Muhammadan and a Hindu woman; nay, that in all that concerns her power over her property, the former is by law more independent than an English woman of her husband. It is no doubt true that a Musulman woman, when married, retains dominion-over her own property, and is free from the control of her husband in its disposition; but the Hindu law is equally indulgent in that respect to the Hindu wife. It may also he granted that in other respects the Muhammadan law is more favourable than the Hindu law to women and their rights, and does not insist so strongly on their necessary dependence upon, and subjection to, the stronger sex. But it would be unsafe to draw from the letter of a law, which, with the religion on which it is chiefly founded, is spread over a large portion of the globe, any inference as to the capacity for business of a woman of a particular race or country. In India the Musulman woman of rank, like the Hindu, is shut up in the zanana, and has no communication, except from behind the pardah, or screen, with any male persons, save a few privileged relations or dependants; the culture of the one is not, generally speaking higher than that of the other, and they may be taken to be equally liable to the pressure and influence which a husband may be presumed to be likely to exercise over a wife living in such a state of seclusion. Their Lordships must, therefore, hold that this lady is entitled to the protection which according to the authorities, the law give to a pardah-nashm, and that the burden of proving the reality and bond fides of the purchases pleaded by her husband was properly thrown on him.' The principles upon which these observations proceed must not be lost sight of in connection with such cases. Again, in Ashgar Ali v. Debroos Banoo Begum I.L.R. 3 Cal. 324 which was also a case in which a Muhammadan pardah-nashin lady was concerned their Lordships made observations which seem to me to be very pertinent to cases like the present. Their Lordships said (p. 327): 'It is incumbent on the Court, when dealing with the disposition of her property by a pardah-nashin woman, to be satisfied that the transaction was explained to her, and she knew what she was doing, and especially so in a case like the present where, for no consideration, and without any equivalent, this lady has executed a document which deprives her of all her property.' There are many other cases to be found in the Reports which lay down the same doctrine, but I will cite only one more passage from the judgment of their Lordships in a recent case--Sudisht Lal v. Sheobarat Kaer I.L.R. 7 Cal. 245 : L.R. 8 Ind. Ap. 39 in which the facts were somewhat similar to those of the present case: 'Their Lordships desire to observe that there is no satisfactory evidence that this mukhlar-nama was explained to the defendant in such a way as to enable her to comprehend the extent of the power she was conferring upon her husband. In the case of deeds and powers executed by pardah-nashin ladies, it is requisite that those who rely upon them should satisfy the Court that they had been explained to, and understood by, those who execute them. There is a want of satisfactory evidence of that kind in the present case. But their Lordships do not desire to rest their decision upon this ground.... If it had been proved that the husband had contracted loans and obtained advances on behalf of his wife, it may be that under this power-of-attorney she would be bound by his acts, as being within the scope of his authority. But it Would have to be shown, not only that he borrowed the money, but that it was borrowed for her.' These passages seem to me to be closely applicable to the circumstances of this case.

4. With reference to the observations of the learned Chief Justice, I have only to add that in all these transactions, the important thing to see is what was actually done. In the present case there is nothing to show that this large sum was ever utilized for the ladies' benefit, and there is no satisfactory evidence to show that they took part in the execution of the mukhtar-nama, or understood its contents, or that they were aware of the existence of the bond, or that it was executed with their consent. The findings of the lower Court are satisfactory, and I would not interfere.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //