1. This appeal arises out of a suit brought for recovery of the amounts alleged to be duo on foot of three mortgages by sale of the mortgaged property. The mortgages are dated respectively the 22nd and 28th of March, 1905, and the 29th of June of the same year. The first mentioned mortgage was executed by Musammat Kubra, the defendant-appellant, and one Diwan Shah. The other two mortgages were executed by Diwan Shah purporting to act on his own behalf and under a power-of-attorney from Musammat Kubra. Musammat Kubra is the wife of one Hamid Husain. She became infatuated with the defendant Diwan Shah, a Persian adventurer, who made his appearance in Saharanpur. She left her husband's protection and went and lived with Diwan Shah. The husband took proceedings for restitution of conjugal rights and obtained a decree on the 19th of December, 1904, and on the 27th of March, 1905, Musammat Kubra was arrested and imprisoned for disobedience of the order of the Court to return to her husband. During the time that she carried on the intrigue with Diwan Shah, she made a gift of some of her property to him, namely, on the 8th of January, 1904, and on the 9th of October, 1905, she also executed a deed of gift of all her property in his. favour. This man appears to have got complete control over her and to have induced her, not merely to leave her husband but to hand over to him all the property of which she was possessed. In the written statement filed by her in answer to the claim brought on foot of the three mortgages in question, she alleged that fraud was practised upon her by Diwan Shah. She stated that she did not understand the nature or contents of the power-of-attorney under which he professed to execute the two last mentioned deeds of mortgage. She also alfeged that no part of the consideration of these mortgages was paid to her or applied for her benefit.
2. We shall first deal with the mortgage of the 28th of March, 1905. This mortgage was executed while Musammat Kubra was in jail. She was imprisoned on the 27th of March; and on that date the power-of-attorney, which is relied upon on behalf of the plaintiff, is said to have been executed, and on the 28th of March the mortgage in question. This mortgage secures a principal sum of Rs. 2,500 and purports to be not a mortgage by Musammat Kubra but a mortgage by Diwan Shah of properly which he acquired from Musammat Kubra. No doubt, he describes himself in the mortgage as acting not merely as principal in the transaction but also as general attorney of Musammat Kubra; but in the body of the document he purports to hypothecate the property mentioned in the schedule to it, which he says is owned and possessed by him, without the participation of any one else. The details of the consideration are stated as follows, namely, credit allowed to the mortgagee for Rs. 300 on account of interest on the loan for one year, and cash received at the time of registration, namely, Rs. 2,200, with which to furnish security and to defray other expenses. The explanation of the furnishing of security is this: Musammat Kubra was in jail, and in order to obtain her release it was requisite that some person should go security for her in the sum of Rs. 2,000. Diwan Shah came forward as security. He mortgaged the property in question, and lodged in Court Rs. 2,000. Subsequently when there was no longer occasion to retain the deposit he applied to the Court for re-payment of this amount and obtained re-payment of it. It is evident from this that the amount of this loan was not obtained for the benefit of Musammat Kubra, except in so far as it enables Diwan Shall to become security for her. The money obtained on the security was received and retained by Diwan Shah and Musammat Kubra got no benefit from it.
3. The other mortgage of the 29th of June, 1905, is for a sum of Rs. 300. In. that document also Diwan Shah purports to act in his own right and as general attorney of Musammat Kubra whom he falsely describes as his wife. In it he also purparts to hypothecate his own property which it is stated he derived under a sale-deed executed by Musammat Kubra on the 8th of January, 1904. In the detail given in the document of the expenditure of the amount received, Rs. 72 appears to have been obtained to meet private expenses and the balance for the purpose of filing appeals in the High Court at Allahabad and in the Judge's Court at Saharanpur on behalf of Musammat Kubra and to meet other private expenses. This document was registered on the admission of Diwan Shah alone.
4. As regards these two documents the allegation of the defendant, Musammat Kubra, is that she never executed knowingly any power-of-attorney in favour of Diwan Shah, but that any document the execution of which was procured from her was procured by undue influence on the part of Diwan Shah and without knowledge on her part of the contents and effect of it. The only evidence to prove that Musammat Kubra had knowledge of the contents of the alleged power-of-attorney is that of two witnesses. One Abdul Wahid stated that the power-of-attorney 'was fully read out and explained to Musammat Kubra.' Munshi Nurul Husain, the Sub-Registrar, stated that he registered a power-of-attorney executed by Musammat Kubra in favour of Diwan Shah and at the time of registration he read out the power-of-attorney to her. Now it is well-settled law that in order to charge a pardanashin lady upon an instrument or power-of-attorney purporting to have been executed by her, it is requisite for the person relying on the document to give satisfactory evidence that the document was explained to, and understood by, the executant [see Sudisht Lal v. Musammat Sheobarat Koer 7 C. 245 (P.C.) : 8 I.A. 39; Behari Lal v. Habiba Bibi 8 A. 267; Shambati Koeri v. Jogo Bibi 29 C. 749 (P.C.)]. In the last mentioned case at p. 757 of the report their Lordships of the Privy Council say: It is a well-known rule of this Committee that in the case of deeds and powers executed by pardanashin 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 executed them.' Now in this case we may observe the lady was separated from her husband. She had no advisee. She executed the alleged power of-attorney at a time when she was in jail and when the only person who appears to have had access to her was the Persian adventurer, Diwan Shah, who managed to obtain from her a gift of all her property. In view of this and of the fact that these documents were not really executed on behalf of Musammat Kubra so much as by Diwan Shah himself on his own account, we are of opinion that the claim upon them so far as regards Musammat Kubra cannot be sustained. No copy of the power-of-attorney has been produced and the only evidence of it upon the record is evidence that a general power-of-attorney was executed by this lady. There is nothing whatever before the Court to satisfy us that if a power-of-attorney was executed by her, that power conferred upon her attorney the right to execute mortgages and borrow money. We, therefore, as regards these two instruments, are of opinion that the decree of the Court below cannot be upheld.
5. We now come to the third document, which is the earliest in date, namely, the bond of the 22nd of March, 1905. The executants of this document are Diwan Shah and Musammat Kubra. It is recited in it that they borrowed Rs. 5,000 from the plaintiff, and in the operative part of the document they both hypothecate the property which is specified in the schedule to it, and which they represent to be property owned and possessed by Diwan Shah under a sale-deed executed by Musammat Kubra on the 8th of January, 1904. The consideration for this document was a sum of Rs. 3,000 which was left with the mortgagee to satisfy a debt due by the executants to Lala Jadu Rai, also a sum of Rs. 600 credited to the mortgagee as interest on the loan up to the 21st of March, 1906, and the balance, a sum of Rs. 1,400, which, according to the registration endorsement was paid in the presence of the Sub-Registrar to both the executants. This document stands on a different footing from the two later documents with which we have already dealt. Musammat Kubra affixed her mark to it and portion of the money forming the consideration for it was a debt doe by her and the co-executant to Lala Jadu Rai. The balance of the debt, Rs. 1,400, was paid to her and to Diwan Shah. We have no reason to believe that the Musammat did not fully understand the contents and effect of this document. She herself appeared before the Sub-Registrar and heard the contents of the document and admitted them to be correct. The Sub-Registrar was examined, and he stated that according to the rules laid down for his guidance he must have explained the contents of this and other documents to which he refers, to the executants. Ram Chander, the scribe of the document, deposed that he read out to Musainmat Kubra the documents executed by her and she understood the contents thereof; and he said that she used to converse with him. Lala Jadu Rai, to whom the debt of Rs. 5,000 is alleged to have been due, was also examined and he deposed that he received that amount through the plaintiff, Ajudhia Pershad, and that when the bond in his favour was executed, it was read out to Musammat Kubra and that she affixed her thumb impression upon it. In view of all those circumstances we think that the Court below was right in giving a decree to the plaintiff for the amount due on foot of the bond.
6. We, therefore, allow the appeal to this extent that we set aside the decree of the Court below in regard to the bonds of the 28th of March and 29th of June, 1905, and as to them dismiss the plaintiff's claim as against the appellant, Musammat Kubra. As to the claim on foot of the mortgage of the 22nd of March, 1905, we affirm the decision of the Court below and give a decree to the plaintiff for the amount secured by that bond with interest at the contractual rate from the 22nd of March, 1906, up to the date to be fixed for payment, and thereafter at the rate of 6 per cent. per annum, to be recovered by sale of the property comprised in that bond. We fix the 15th of September next for payment. We direct that a decree be drawn up accordingly. The parties will pay and receive costs in this Court and in the Court below, including fees in this Court on the higher scale, proportionate to failure and success.