1. In this case the District Judge seems to have started with the idea that because the plaintiff is illiterate the burden of proving that she knew what she was doing is on the defendants. This is clearly not so. The burden is in the first place on the plaintiff to show that she did not know what she was doing. We must, therefore, ask the District Judge to find, in the light of these observations, on the evidence on record whether when the plaintiff executed Exhibit III she did not know the nature of her act.
2. The finding should be submitted within 6 weeks and seven days will be allowed for objections.
3. In compliance with the above order the District Judge submitted the following
1. A finding is called for in the light of the order of remand on the issue whether plaintiff executed Exhibit III without knowledge of the nature of her Act. The parties place different constructions on the: order, entailing different decisions. I deal with the case in order to completeness on both.
2. Firstly, Nos. 1-5 defendants urge that the question of burden of proof is closed absolutely, and that the terms of the order involve a decision on the whole evidence before the Court, that it is on plaintiff, and leave nothing to be dealt with but the direct evidence that she did or did not know the nature of her Act. On that assumption the finding must be against her, since there is nothing in her favour but her own interested statement to the contrary, and the absence of the evidence that Exhibit III was read out to her.
3. Next, plaintiff contends that the remand was granted on the ground that this Court was understood to have imposed the burden of proof on defendants on the sole ground that she is an illiterate woman, he refers to the statement that 'the burden of proof is in the first place on plaintiff,' and urges that the terms of the order are intended to leave open the question of any subsequent transfer of it, which other evidence may justify. I, therefore, deal with the case on this assumption.
4. Reference has already been made in the judgment under remand to the considerations, which arise and which in addition to plaintiff's sex and illiteracy were relied on for the conclusion as to burden of proof at the end of its para 4. She is a Brahmin woman, and had at most lately reached majority, and, though no doubt there is nothing to bring her within the description of a pardanashin woman, there is no reason for attributing to her any greater capacity than is usual in women of her age and caste; there is no evidence that she was used to business or had taken part in other transactions. It is next shown that she belonged to Malabar and had come to her husband's village for a visit on the twelfth day after his death, three days before Exhibit III was executed. Her natural adviser, her father, no doubt, was with her. But the evidence on record is that he diverted one part at least of the consideration from her Rs. 447 was payable to him on a pro-note, Exhibit I, which contains nothing except a reference to the amount, as part purchase money of her lands, to show that he received it on her behalf or for her benefit. She denies that she has had the money, and the evidence is only that her father has negotiated the note, not that he has passed on to her the proceeds. No attempt has been made to prove that he had any right to retain them. All appearance indicates that he alone benefited under the transaction and the burden of proof that he did not do so or that he did so legitimately, is transferred to defendants and has not been discharged. The evidence as to her receipt of Rs. 350, to which only 1st defendant and the karnam of his village speak, plaintiff alone supporting the negative, is insufficient to transfer the burden of proof in respect of it, though there is room for strong suspicion. As regards the Rs. 447, however, I think that plaintiff's father's failure to protect her interest is made out. Next the haste with which' the bargain was concluded, is material. It would be difficult for a person of a clear capacity to decide on the advisability of accepting the first offer for property worth at least Rs. 3,000, with which and the locality he had not more than a week's acquaintance. That difficulty would be enhanced in the case of a person in plaintiff's position. It is not shown that there was any urgent necessity for the conclusion of the transaction in so short a time. The inference must be that plaintiff was hurried into it, and it has not been rebutted.
5. Objection has been taken to the reference in this Court's first judgment to the inadequacy of the price fixed and the finding that it was, inadequate. It is said first that the issue as to absence (not inadequacy) of consideration was struck out, because the plea of absence of consideration was inconsistent with others raised; its cancellation did not involve that inadequacy could not be relevant to the plea that plaintiff did not understand the nature of her Act. It is said, however, that it would be irrelevant; Section 25 explanation 2, Indian Contract Act, and the consideration of such a contention in Administrator-General of Bengal v. Juggeswar Roy 3 C.K 192 are sufficient authority to the contrary. As regards the fact of inadequacy the sale of the lands in November with standing crops was for Rs. 3,000; plaintiff owning a life-interest received nominally Rs. 800 for it; there is evidence (defendants 2nd witness) that one year's gross outturn of the whole property was about 1,000 kalams of paddi, that is Rs. 1,500 or Rs. 750 being the share proportionate to her moiety. The kist was given in the plaint for purpose of valuation at Rs. 120 per annum without objection. The net in-come, kist and cultivation expenses deducted, would, therefore, be presumably at least over Rs. 350. It is impossible to regard Rs. 800, the most that plaintiff can be taken to have received as adequate for her life-interest, or Rs. 3,000 as adequate for the absolute interest in the property.
6. Plaintiff was then actually ignorant of what she dealt with, young and inexperienced in business, and deprived of any honest advice, her natural adviser having accepted a benefit for himself in the course of the transaction The bargain was unconscionable. En these circumstances the case comes within Section 16 (2) (6) and (3), Indian Contract Act, and the burden of proof has been transferred from her to defendants.
7. Their attempt to discharge it is supported by the evidence of two witnesses only, one being 7th defendant, and the other the karnam of the village, in which the lands are. Neither is independant, and their statements include nothing to show that Exhibit III was read to plaintiff, or explained to her. It was no doubt registered, but there is nothing to show that any person, who took part in the registration, would see to the protection of her interest; her father had already been dealt with. The facts connected with Exhibit V and the resale after three or four months indicates at least that no ordinary investment, but a distinct purpose to acquire these lands in particular was effected; this enhances the improbability that defendant's conduct was honest. On the assumption that the burden of proof has been transferred to them, I find in plaintiff's favour.
8. This second appeal coming on for final hearing after the return of the said finding, the Court delivered the following.
9. We accept the finding and dismiss the second appeal with costs.