Debabrata Mookerjee, J.
1. The question raised in this appeal is whether a deed of sale executed by an illiterate woman without the benefit of independent advice is subject to the same jealous scrutiny of the Court as an instrument executed in similar circumstances by a pardanashin lady strictly so-called.
2. The plaintiff who is the appellant before us instituted a suit out of which this appeal arises for a declaration that a kobala (Ex. 3), dated 10-8-1943, executed by her purporting to transfer to the defendant her homestead land with structures thereon, was invalid, inoperative and unenforceable in law. The allegation is that as a result of undue influence brought to bear upon her by the respondent and the misrepresentation and fraud practised by him, she had been induced to execute the impugned document without knowledge and understanding of its contents.
3. The case made by the plaintiff appellant is that having been left a sonless widow five years ago she inherited her husband's property, the subject-matter of the dispute, which is a homestead consisting of 18 rooms partly brick-built with necessary conveniences within the limits of Bhatpara municipal area. Most of the rooms were tenanted and she occupied a part of the premises herself. She was thus in possession of the entire premises. During the lifetime of the appellant's husband relations between her and her parents became very strained and this state of things continued even after the death of her husband. The respondent who professed great friendship for her husband during his life time, took advantage of the situation and kept her from renewing contacts with her parents and their people and suggested that if she made up with them they would grab her property. The appellant unhesitatingly believed in the respondent's profession of sympathy and placed implicit reliance upon him.
Sometime thereafter the defendant held out the prospect of a happy married life with a member of his community provided she was prepared to spend about Rs. 500/-. The plaintiff's will was thus completely dominated by the defendant who suggested the raising of the required amount by mortgaging the property in dispute. Cut off from her relations, the plaintiff had no independent advice and she succumbed to the blandishments of the defendant who took her one day to the Registration office where she was induced by him to put her thumb impression on a stamped document on the representation that the deed was a deed of mortgage. She had thus no knowledge or understanding of the contents of the document which were never read over or explained to her. The execution of the document was kept a secret under the respondent's advice.
Thereafter the proposed groom proved disappointing and this annoyed the respondent who threatened to drive her out declaring that the property was already his on the strength of his purchase. The appellant was thus driven to seek the assistance of her father and her uncle and she then discovered that the deed she had executed was not a deed of mortgage but an out-and-out sale. The appellant claimed that the property was valuable property worth about Rs. 8000/- of which the respondent wanted to deprive her by obtaining the kobala by the exercise of undue influence, fraud and misrepresentation. Hence the suit was brought to prevent a cloud being cast upon her title.
4. The respondent denied friendship with the appellant's husband and the state of ill-feeling said to exist between the appellant and her parents or the suggestion of raising a loan on the security of the property. He made the specific case that the appellant being in want of money was unable to keep the property in repairs and sold the same for Rs. 520/- by executing the kobala with knowledge and understanding of the contents of the deed which had been read over and explained to her. The respondent's further case was that after the purchase he went into possession by inducting tenants on the premises in respect of which he paid taxes to the municipality and rent to the landlord. The appellant, he' claimed, was one of his tenants and had defaulted in paying rent and forestalled an action in ejectment by instituting the present suit. Upon these pleadings, the parties went to trial. Several issues were framed in the case and these are as follows:
'1. Is the court fee sufficient?
2. Is the defendant's alleged kobala by the plaintiff a valid, bona fide document for consideration or is the alleged kobala a mala fide and illegal and void document of sale without consideration created by the defendant under fraud, undue influence, coercion and misrepresentation as alleged by the plaintiff?
3. Has the defendant acquired any title to and legal possession of the disputed property by his alleged purchase?
4. Is the plaintiff entitled to the declaration and reliefs prayed for?
5. To what relief, if any, is the plaintiff entitled?'
5. It is clear that the real question between the parties was whether the plaintiff appellant was entitled to any kind of protection under the law by reason of the helplessness of her state on account of illiteracy and ignorance and secondly if she was so entitled what corresponding burden was cast on the respondent who dealt with her. The issues framed in the case raised in substance these questions though they appear to have been raised in a somewhat confused manner. The rule of law governing transactions entered into by a pardanashin woman properly so-called is in no unsettled state. It has been the subject of judicial pronouncements of the highest eminence and authority. Such a woman has been held to be entitled to protection because of the disabilities peculiar to the class to which she belongs which make her dependent upon or subject to the will of others.
In the case of -- 'Kali Baksh Singh v. Ram Gopal Singh', 41 Ind App 23 (PC) (A), Lord Shaw in delivering the judgment of the Judicial Committee observed:
'the law throws around her a special cloak of protection. It demands that the burden of proof shall in such case rest not with those who attack, but with those who found upon the deed, and the proof must go so far as to show affirmatively and conclusively that the deed was not only executed by but was explained to and was really understood by the grantor. In such cases, it must also, of course, be established that the deed was not signed under duress but arose from the free and independent will of the grantor.'
These observations were in essence an extension of the principle affirmed in an earlier decision of the Board in the case of -- 'Sajjad Hussain v. Wazir Ali Khan', 39 Ind App 156 (PC) (B), that it rested upon those founding upon a deed executed by a pardanashin woman to affirmatively establish that she understood its effect and the deed was intelligently and properly executed by her.
6. The substantial question here is whether in the facts and circumstances proved the plaintiff appellant could be held to be entitled to this protection. This would require examination of the reasons behind the rule protecting transactions in which paradanashin women are concerned. The inhibitions imposed by social conditions upon women of a certain well-defined class bring in their train disabilities which have compelled reversal of the rule that ordinarily a person is to be held to his contract. These disabilities are due largely to illiteracy and ignorance which superadded to restrictions on free movement and contact with the world outside induce a condition of helplessness requiring the utmost vigilance to prevent unfairness in a deal in which she is concerned. The parties to the transaction not being evenly placed, courts called upon to pronounce on such transactions have always jealously guarded against possible unfairness. It has therefore come to be recognised as a rule of law that a party founding on a deed executed in such circumstances has to establish intelligent understanding of the deed and the burden is not discharged by mere proof of the execution of the document. Questions of fraud or undue influence apart, the plain requirement of the law in such cases is clear proof of comprehension of the contents of the document executed by her.
Such protection cannot plainly be the exelusive privilege of the class commonly known as pardanashin. The parda with its inhibitions may be an additional feature or element in the case but the real reason behind the rule is lack of understanding and appreciation of what an illiterate woman without independent advice, is about. Where ignorance and illiteracy are proved exposing the woman concerned to the danger and the risk of an unfair deal it would, we think, be a perversion of the rule to deny in such case the protection, despite the helplessness of her state, merely on the ground that she is not strictly pardanashin. It is quite conceivable1 that a woman belonging to the pardanashin class properly so-called may in spite of the restraints of the parda have sufficient understanding and appreciation of the contents of a document to which she is a party. In such case there can be no question of the protective cloak being thrown around her and she cannot be heard to plead her pardah in avoidance of the transaction. The criterion cannot be the social status implied in the pardah class but the ability to comprehend the contents of the document in question and the means or opportunities of such comprehension. The emphasis must be on the factual understanding of the document with reference to the individual concerned and not upon presumptive disability incidental to mere status.
7. In the case of -- 'Hodges v. Delhi and London Bank Ltd', 27 Ind App 168 (PC) (C), the Judicial Committee had occasion to observe that outside the well-known class of pardanashin women
'it must depend in each case on the character and position of the individual woman whether those who deal with her are or are not bound to take special precautions that her action shall be intelligent and voluntary and to prove that it was so in case of dispute.'
It would therefore be wrong to suppose that a woman outside the parda class is not entitled to the protection despite the disability of illiteracy and ignorance and absence of independent advice where her pardanashin counterpart is readily admitted to it.
8. The court below held that the appellant though an illiterate woman was not entitled to the protection in view of her status and habits. Presumably, the learned Judge had in mind the fact that the appellant used to work in a mill and was therefore not subject to the disability imposed by the pardah. The mere fact that the appellant made a living as a mill-hand did not necessarily imply that her deficiencies on account of illiteracy and ignorance were supplied and she was competent to transact business with normal skill and care. In order that the impugned kobala might be upheld it has to be found upon evidence that she understood the contents of the same. An omnibus finding to' the effect that the appellant was a 'woman of the world' -- a phrase not easy to understand and one arrived at without real basis in evidence -- cannot possibly take, the place of proof of the essential fact that she comprehended the terms of the kobala by which she purported to have parted with all that she possessed. The observation of the learned Judge that she appeared to be conversant with the language in which the kobala was written is equally unhelpful. Mere acquaintance with the language of the deed as spoken in common parlance can be of no assistance in view of her proved illiteracy and in the absence of satisfactory evidence to establish that the kobala was read out to her so that she was enabled to understand the contents of the document.
9. Making ample allowance for the fact that the court below had the advantage of hearing evidence, it cannot but be held that the finding arrived at takes little or no account of actual evidence in the case. There was clear averment in the plaint that the document was executed by the plaintiff in the belief that it was a deed of mortgage to which she thought she was subscribing and that the deed itself had not been read out to her. In Court she deposed that she took the deed to be a deed of mortgage and the contents of the document were not explained or even read out to her. This evidence remained unshaken in cross-examination. She thus laid the foundation of her case and the onus lay heavily on the respondent who founded on the deed to prove that the document had in fact been read out to her and she understood the contents of the same.
The evidence which the respondent led in this behalf is highly discrepant and unreliable. The respondent's case was that the kobala was written by one Debidas Haldar and explained to the appellant by Debidas's father Nagendra Nath Haldar (D. W. 1). Nagendra deposed in the case but Debidas the scribe who, it transpired, was working in the Sub-Registry office on the day the case was heard did not appear to give evidence. No explanation has been offered for non-examination of Debidas whose absence is a matter of moment in the case in view of the intrinsic evidence furnished by the kobala itself which contained an endorsement to the effect that Debidas had explained the contents of the deed to the plaintiff-appellant. Nagendra however gave a different version, who was evidently not prepared to take the responsibility of deposing that he had read out the document. He shifted that responsibility on to his absent son Debidas who, he said, had read out and explained the kobala to the appellant.
Upon this evidence, it is impossible to hold that the deed under challenge was either read over or explained to the appellant. The learned Subordinate Judge paid no attention to the evidence just indicated bearing as it does upon a vital part of the case and completely misdirected him-self with the result that his conclusions were reached without regard to the essential requirement of the law that a party founding on a deed has to establish affirmatively intelligent understanding of the contents by the party under disability. There is no evidence to show that the disposition in the document was the mental act of the appellant as its execution was her physical act.
In this context it is useful to remember the words of Lord Sumner in the case of -- 'Mt. Paridunnissa v. Mukhtar Ahmad' . Mere execution by a person under disability
'although unaccompanied by duress, protest or obvious signs of misunderstanding or want of comprehension is in itself no real proof of a true understanding mind in the executant. Evidence to establish such comprehension is most obviously found in proof that the deed was read over to the settlor and where necessary, explained.'
There is no such proof in the present case and the respondent must be held to have failed to discharge the onus that lay heavily upon him.
10. Allegations of fraud and undue influence were also made by the appellant. It was alleged by her that her relations with her own people had been strained and they continued to be so even after the death of her husband. In view of our findings above, it would be wholly unnecessary to pursue this part of the case. The learned Subordinate Judge held that mere statement of the appellant was not sufficient to prove that the respondent dominated her will or exercised undue pressure upon her. It is true, nothing will turn upon an isolated statement; but where, as here, the good faith of a transaction is in Question throughout between the parties one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. Even a cursory review of the evidence in the case and the averments of the parties compel the inference that the respondent did stand in a position of active confidence and therefore it lay on him to prove the good faith of the transaction. This part of the case made by the plaintiff stands unrebutted. The respondent failed to discharge the onus.
11. There is another circumstance to which reference must be made. The learned Subordinate Judge found that although the purchase price might be held to be inadequate, it was not so 'grossly unfair' as to raise a presumption of fraud or undue influence. The evidence shows that the appellant was purporting to part with her all. It was her homestead and represented all that she stood seized of. She adduced evidence to prove that Rs. 520/- could not in any estimate be regarded as anywhere near a fair price. The learned Judge again misdirected himself and held that it might be a case of 'hard bargaining' but not one of actual fraud. 'Hard
bargaining' is to my mind sufficient to make the whole thing suspect in the eye of law and condemn the transaction. The evidence adduced by the appellant in this regard tends to show that the property was very much undervalued and its fair price would be somewhere between Rs. 7000/-and Rs. 8000/-. In a case of this kind, the test of good faith should be the fairness of the bargain as was laid down by this Court in the case of --'Nibaran Chandra Mukherji v. Nirupama Debi', AIR 1921 Cal 131 (E). Judged by this test, we hold upon evidence that the transaction resulted in unconscionable advantage to the respondent and cannot consequently be upheld.
12. We accordingly hold that the appellant was entitled to the protection of the rule by reason of her ignorance and illiteracy despite the fact that she was not strictly pardanashin and that the respondent who was in a position of active confidence failed to discharge the onus of proving' intelligent understanding of the document by the appellant and the evidence far from proving the fairness of the deal, proved the contrary, namely, the transaction resulted in an unconscionable advantage to the respondent,
13. Upon the question of possession of the property in suit, evidence has been led by both parties. It is not necessary to review that evidence except to say that the evidence adduced by the appellant is more trustworthy and acceptable. The respondent although claiming to be in possession failed to examine even a single tenant in occupation of the premises. We agree with the learned Subordinate Judge that the respondent failed to prove his possession and we hold that the appellant was in possession of the properties in suit and was entitled to frame the suit as she did.
14. The result is that the appeal succeeds. The judgment and decree of the Court below are set aside and the suit is decreed. The appellant is entitled to have the kobala dated 10-8-1943 adjudged void and declared inoperative. The plaintiff-appellant will get her costs here and in the Court below. During the pendency of the appeal the appellant having died her sole heir Parbatia (minor) got herself substituted and the latter was represented by her maternal grandfather Jhangri Pashi.
15. Let a copy of this decree be set to the Registration Officer concerned for necessary action.
K.C. Das Gupta, J.
16. I agree.