1. These two appeals arise out of the judgment and decree of the first Additional Subordinate Judge of Cuttack in a suit for the enforcement of a simple mortgage bond (Ext. 2). The mortgage bond dated the 15th May, 1945 was executed jointly by Bhikari Ram (defendant No. 2) and Jasoda Dei (defendant No. 3 since dead) mortgaging the house of her minor son Mahesh Prasad Bhagat (defendant No. 1) for the sum of Rs. 10,000/- in favour of the two plaintiffs. Defendant No. 2 Bhikary Ram had admittedly no interest in the mortgaged property, but it was alleged by the plaintiffs that he was a near relation of defendant No. 3 who was a Purdanashin lady, that he was acting as the manager of her family and that the suit loan was advanced by the plaintiffs for a business, named Bhagawat Chemicals started by the family of which defendant No. 2 was the managing partner.
2. Defendant No. 1 who had become a major by the date of the institution of the suit denied all liability under the mortgage bond (Ex. 2) and stated that it was executed by his mother Jasoda Dei who was an illiterate Purdanashin woman, without knowing its contents and import and without getting independent advice, on the false representation made by defendant No. 2 and thatconsequently it was not binding on him. Defendant No. 2 also stated that the bond did not represent a genuine transaction but that it was executed by him and Jasoda Dei by way of security for certain sums advanced to him by one Fazle Haque whose benamidars the plaintiffs were alleged to be plaintiff No. 1 is admittedly the son-in-law of the said Fazle Haque and plaintiff No. 2 is Fazle Hague's brother. Defendant No. 2, however admitted that he had received in all Rs. 4,800/- from Fazle Haque for his business and further stated that he had paid him Rs. 1,200/-after getting a receipt. He admitted personal liability to pay the balance of the loan to FazleHaque.
3. The learned Subordinate Judge held that the plaintiffs had failed to establish affirmatively that Jasoda Dei executed the mortgage bond after being made fully aware of its contents and import, and that consequently it was not binding on her minor son (defendant No. 1). He however gave a money decree for Rs. 4,800/- against Respondent No. 2 and refused to give a set-off for the sum of Rs. 1,200/- said to have been paid by him to Fazle Haque, observing that the said Fazle Haque had no authority to accept the same on behalf of the plaintiffs or to grant a receipt therefor.
4. The plaintiffs appealed to this Court, in F. A. 53 of 1953 against that portion of the judgment and decree of the learned Subordinate Judge dealing with the dismissal of the suit against defendant No. 1 and the disallowance of a portion of their claim against defendant No. 2. Defendant No. 2 also filed a cross-appeal in F. A. 52 of 1953, against the order of the Subordinate Judge refusing to give him a set-off for Rs. 1,200/-paid by him to Fazle Haque. Both these were heard together.
5. Mr. Sinha on behalf of defendant No. 2, however, stated that he would not press the cross-appeal. Hence we are concerned only with F. A.53 of 1953 in which the main question for consideration is whether the mortgage bond (Ex. 2)) is binding on defendant No. 1,
6. Admittedly, defendant No. 1 was a minor when Ext. 2 was executed on his behalf by his mother Jasoda Dei (since dead). The mortgaged property is also admitted to be the ancertral property of defendant No. 1. It is further admitted by the plaintiffs, in the plaint, that Jasoda Dei was a Purdanashin lady. Defendant No. 1 while deposing as D.W. 1 has also stated that apart from signing in Oriya, she was illiterate for all practical purposes. Though the plaintiffs have not categorically admitted that she was illiterate there is no rebutting evidence on their side to challenge this piece of evidence of defendant No. 1. There is also no evidence to show that defendant No. 3, though an illiterate Purdanashin lady, was an extraordinarily capable and shrewd woman accustomed to carry on the business of the family, without any male help. Doubtless the family was a trading family and was running a small grocery shop in Cuttack town. On these admitted facts, the question arises as to whether an alienation made by an illiterate Purdanashin woman of her minor son's property in favour of the plaintiffs would be binding on him.
7. The law dealing with alienation made by illiterate Purdanashin ladies is too well known and need not be described at length. There are several decisions of the Privy Council, on the subject which have been summarised by Rowland J. in Sadhabi Debi v. Parmananda Misra, 4 Cut LT 6 (A) as follows :
'In the case of a deed executed by a purdanashin lady the law protects her by demanding that the burden of proof shall in such cases rest not with those who attack, but with those who rely on the deed; and it must be proved affirmatively and conclusively that the deed was not only executed by, but was explained to and really understood by, the grantor. Ordinarily the Courts insist on proof that the lady had independent legal advice, and though this is not an absolute and invariable rule--although there may be exceptions where the lady was shown to have business capacity and strength of will and where the deed is shown to be in the circumstances not an unnatural disposition of her property as in Kali Bakhsh Singh v. Ram Gopal Singh, 41 Ind App 23 (PC) (B), the general rule is that save in such exceptional cases the Courts will demand affirmative proof on the subject of the lady's intelligent understanding and execution of a deed and will not readily hold this onus to have been discharged where it is not shown that the lady had any independent advice.'
The burden is therefore heavily on the plaintiffs to establish affirmatively (1) that the mortgage bond was explained to and really understood by defendants No. 3 and (2) that defendant No. 3 had independent advice or else that she had so much business capacity and strength of will as to dispense with the necessity of independent advice.
8. In my opinion, the lower Court rightly held that the plaintiffs have completely failed to discharge this heavy onus. There is practically no evidence worth the name to show that defendant No. 3 really understood the terms of the mortgage bond. P.W. 5 Jambeswar Patnaik who is one of the attesting witnesses stated that defendant No. 3 was present when the document was being scribed at the dictation of defendant No. 2 and that the scribe read over the contents of the same to both of them. Then Jasoda Dei gave her signature in the bond. This witness does not say that apart from mechanically reading over the document its contents were explained to the lady.
The necessity for such an explanation arises not only because she was a Purdanashin lady but also because the document deals with highly technical business terms which even a layman will not ordinarily understand. Plaintiff No. 1 while deposing as P.W. 6 stated that defendant No. 2 himself read over the document to defendant No. 3 while she was seated on the other-side of the purdah. This piece of evidence, even if believed, will not suffice to discharge the heavy onus cast on him by law. The only other witness on the subject is the District Sub-Registrar, Shri N.K. Patro (P.W. 2) who registered the document. He stated that the identifier read over the document to the lady, in his presence and hearing, while she was sitting behind a purdah. After the reading was over the Sub-Registrar asked the lady :
'You have heard the document read over. Is it all right and do you admit execution?''
She replied that the document was all right and she admitted execution. It was urged that these answers given to the Sub-Registrar are sufficient to show that the lady fully understood the purport of the document. Merely because the lady said, when questioned by the Sub-Registrar, that the document was all right, it does not follow that she understood the terms of the same. The Sub-Registrar does not say that apart from reading over the document the identifier explained the contents of the same to the lady clearly. Neither the scribe nor the identifier has been examined in the case.
But there is an endorsement made by the Identifier (Ext. 2-(c)) on the document to the effect that it was read over to and understood by Jasoda Dei. Mr. Khan, on behalf of the appellants urged that this endorsement should be taken as prima facie evidence to show that the terms of the document were explained to the lady and that it was for defendant No. 1 to rebut the inference arising from the endorsement. This argument is unsound. The endorsement Ext. 2 (c) has very little value when the writer of the same, namely the identifier (Gadadhar) has not been examined as a witness. In view of the heavy burden cast on the plaintiffs to establish affirmatively that the terms of the document were understood by the lady I cannot rely on the endorsement made by a person who is not a witness in this litigation.
9. There is also complete lack of evidence on the side of the plaintiffs to show that defendant No. 3 was made aware of the fact that she was mortgaging the property of her minor soil and that such an alienation can be made by her only for legal necessity or for the benefit of the minor's estate. It is doubtful if defendant No. 3 would have joined in the execution of the bond, if she had independent advice about the circumstances under which alone she could mortgage the property of her minor son. The meagre evidence available as regards her intelligence, business capacity and strength of will, is not sufficient for this Court to hold that the plaintiffs have discharged the onus cast on them and that the lady was not in need of independent advice. The Privy Council decision in 41 Ind App 23 (PC) (B) on which Mr. Khan has relied, is thus clearly distinguishable.
10. I would therefore in agreement with the lower Court hold that the mortgage bond (Ext. 2) dated the 15th May, 1945 was not duly executed by defendant No. 3 and that it is not binding on defendant No. 1.
11. It was also contended by Mr. Khan that the trial Court should have decreed the entire sum of Rs. 8,000/- against defendant No. 2 and not merely the sum of Rs. 4,800/- as admitted by the latter. There is practically no corroborative evidence, on the side of the plaintiffs, to show that Rs. 8,000/- was in fact advanced to defendant No. 2. No receipt signed by defendant No. 2 in proof of the payment of that sum has been produced. If really such a large sum was advanced it is highly unlikely that the plaintiffs would not have taken the precaution of obtaining receipts especially when in the deed of agreement between the two parties, dated the 21st December, 1944 (Ext. 3) there was a clear stipulation to the effect that whenever any sums of money were advanced to defendant No. 2 by the plaintiffs receipts should be taken.
A mere oral statement about the payment of such a large sum by the plaintiff cannot therefore carry any weight. The accounts of the business have also not been proved to corroborate the story of payment of that sum. It was urged that the accounts remained with defendant No. 2 but the receipt (Ext. A-(1)) dated the 7th April, 1945 granted by plaintiff No. 1 shows that he received all the keys and stocks from defendant No. 2 and took over charge of his factory which was known as Bhagawat Chemicals. The lower Court rightly refused to believe the oral evidence of the plaintiffs especially when there were several discrepancies in the evidence, and hence only that amount which was admitted by defendant No. 2 was decreed against him.
12. First Appeal No. 53 of 1953 is accordingly dismissed with costs. The cross-appeal, namely, First Appeal No. 52 of 1953, is also dismissed but without costs.
13. I agree.