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Life Insurance Corporation of India Vs. Smt. Nandarani Dassi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberSuit No. 136 of 1958
Judge
Reported inAIR1970Cal200,74CWN43
ActsTransfer of Property Act, 1882 - Section 58; ;Contract Act, 1872 - Section 16
AppellantLife Insurance Corporation of India
RespondentSmt. Nandarani Dassi
Appellant AdvocateM.M. Sen and ;H.M. Dhar, Advs.
Respondent AdvocateA.K. Guha, Adv.
Cases ReferredMt. Kharbuja Kuer v. Jang Bahadur Rai
Excerpt:
- .....are taken together, as the facts they traverse run into one another. at the time of the first mortgage, nandorani's solicitor, mr. h. n. sen, was there to advise her and to protect her interest. her husband moti lall, a pleader too, was there as well. what better advice and legal advice at that, could she have at that point of time? it was so independent advice too. the solicitor who was advising so, in regard to a simple mortgage transaction, was not in any way dependent on the mortgagee company, taking the mortgage, and represented by a separate and independent solicitor of its own, namely, mr. n. k. roy. more, such a one. mr. h. n. sen, in possession of full facts, was giving real advice, and not sham advice. and how simple were the facts he was in possession of! the 4/21st.....
Judgment:

Bijayesh Mukherji, J.

1. By this suit raised on January 28, 1958, the Life Insurance Corporation of India (shortened into LIC hereafter, as far as possible), prays for a decree under Order 34, Rule 4 of the Civil Procedure Code (5 of 1908) in form No. 5-A in appendix D in the first schedule thereto, on the foot of two mortgages, the details whereof are set out below:

1.Mortgage-deed bearing date November 29, 1946 exhibit A: principal sum

-Rs. 29,000.002.Deed of further charge bearing date January 19, 1949, exhibit B: principal sum

-Rs. 5,000.00 3.Annual interest at 7% a compound up to Janu-ary 27, 1958, minus cre- dit of sums received towards interest-Rs. 20,247.71

4.Total-Rs. 50,247.71

2. The mortgagor is the sole defendant to this suit, Smt. Nandorani Dassi qua trustee to the estate of late Modhoo Sooden Sain, her father-in-law. The property mortgaged is the divided 4/21st share in the then 116 Cotton Street, now numbered as '114/1B', and admeasuring 1 cottah 14 chittacks and 3 square feet. The mortgagee is India Provident Company, Ltd., the statutory successor of which is LIC, the present plaintiff.

3. The pleas, Nandorani, the defendant, resists the suit with, are-

One, she had not received the full consideration money for either of the two mortgages.

Two, a pardanashin lady, with little education, she had had no independent advice ever.

Three, she never fully understood the Import or effect of the two mortgages.

4. The issues raised at the trial are:

1. Did the India Provident Co., Ltd., the predecessor in interest of the present plaintiff. Life Insurance Corporation of India, advance to the defendant a sum aggregating Rs. 30,000?

2. Had the defendant independent advice at the relevant time?

3. Was the disposition evinced by the two mortgages -- one dated November 29, 1946, and another dated January 19, 1949 -- substantially understood by her, and her mental act, as the execution thereof was her physical act, if that?

4. What reliefs, if any, is the plaintiff entitled to?

5-10. To the first issue first. Evidence is overwhelming that Nandorani did receive Rs. 30,000 in full. [After discussing the evidence his Lordship continued.]

11. So, nothing shakes the authentic evidence led on behalf of LIC to prove payment of Rs. 30,000 in full by the mortgagee company to Nandorani. It is, I hold, evidence of standing. And I find the first issue against Nandorani, the sole defendant.

12. The second and the third issues are taken together, as the facts they traverse run into one another. At the time of the first mortgage, Nandorani's solicitor, Mr. H. N. Sen, was there to advise her and to protect her interest. Her husband Moti Lall, a pleader too, was there as well. What better advice and legal advice at that, could she have at that point of time? It was so independent advice too. The solicitor who was advising so, in regard to a simple mortgage transaction, was not in any way dependent on the mortgagee company, taking the mortgage, and represented by a separate and independent solicitor of its own, namely, Mr. N. K. Roy. More, such a one. Mr. H. N. Sen, in possession of full facts, was giving real advice, and not sham advice. And how simple were the facts he was in possession of! The 4/21st undivided share in the then 116 Cotton Street was to be partitioned in view of the allotment made to Nandorani by the Commissioner of partition in a partition suit of this Court: Suit No. 1152 of 1909. Unless it was partitioned so, it could not be made separate and independent and, therefore, viable, just what the recitals in the first mortgage-deed bear:

'And whereas by the ...... Return the Commissioner of Partition directed the mortgagor to do certain things mentioned in the ......... Return in order to make her lot separate and independent .........'

That would certainly require money to be expended, the more so, because, to quote a little more from the recitals:--

'......... pending the final confirmation of the said Return the said Mortgagor did by an order dated the 22nd day of June 1944 made in the said suit take possession of the 4/21 part or share ........'

in the then 116 Cotton Street. Sure enough, the mortgagor could not lie by in such a situation at the peril of the very allotment made to her and taken possession of by her. Money she did need, but apparently she had not. Placed in possession of such facts. Solicitor H. N. Sen earned competence to give proper advice: (1) Wright v. Carter, (1903) 1 Ch 27=72 LJ Ch 138=51 WR 196. And what advice would a competent and honest adviser give in the circumstances save the advice of raising money by mortgage of such valuable property in the very hub of trade and commerce in Calcutta--a notorious fact I take judicial notice of? Nandorani's solicitor, Mr. H. N. Sen, did no more. And the test is just that, as laid down by Lord Hailsham, L.C., in (2) Inche Noriah v. Shaikh Allie, 1929 AC 127=AIR 1929 PC 3: the advice must be such as a competent and honest adviser would give acting solely in the interest of the donor (here the mortgagor).

13. Once the first and main mortgage of November 29, 1946, stands on the basis of honest and competent advice given by Solicitor H. N. Sen, Nandorani's own solicitor, it is futile to make a point of further payments of Rs. 10,000 having been made by the mortgagee company and received by Nandorani on four subsequent dates: June 11, November 22, December 20, 1947, as also February 4, 1948, according to the very terms of the instrument of mortgage (quoted in paragraph 5), in absence of Mr. H. N. Sen, but in presence of Moti Lall Sain, Nandorani's husband, than whom she had no greater well-wisher.

14. The same consideration applies mutatis mutandis to the execution of the deed of further charge, a little more than two years after the execution of the first one. Once the great deed stands the small deed, some two years later, follows as a matter of course, and that too Nandorani not fending for herself, but befriended by none else than her husband Moti Lall on this occasion as well. Then, there is Nandorani's letter bearing date February 3, 1948, exhibit J, to the address of Mr. N. K. Roy, the mortgagee company's solicitor, requesting a loan of another sum of Rs. 5,000, as Rs. 25,000 taken already had been expended, because 'owing to the abnormal rise in charges of labour and materials, the cost of repairs, additions and alterations is much exceeding' the estimated amount. The result of the partition suit having been what it is, repairs, additions and alterations there had to be as of necessity. I find, therefore, a ring of truth in this letter of Nandorani. And the further deed of charge cannot go down on a consideration as this: that she had no independent advice.

15. I have so long proceeded on the footing that independent advice is essential. Even then the two instruments of mortgage stand. But here I see circumstances which establish the fact that both the instruments are the spontaneous and well understood acts of Nandorani. Such circumstances are-

(i) There was then absolute necessity for money, and not an inconsiderable sum at that, though small enough compared to the value of the valuable property in the heart of the town of Calcutta, following the return of the partition Commissioner, so as to make the allotment to Nandorani viable, in absence of which the allotment so made would go to pieces.

(ii) What bulks large is the simple nature of the transactions: bare mortgages with complications nowhere, which a woman of Nandorani's type, operating a banking account, could and did understand well enough, the Bengali equivalent of a mortgage: 'Bandaki' being a common word, understood by almost all, males and females, no matter what their education is, nothing to say of one like Nandorani.

(iii) Nandorani did not impeach, but abode by the two mortgages over the years ever since their execution in 1946 and 1949 until the filing of her written statement on September 1, 1958.

(iv) Such delay, coupled with payment of interest over the years too brings out in bold relief her true intention that she stood by the mortgages all along, acknowledging thereby that she executed them in full understanding of what they were: (3) Wright v. Vanderplank, (1856) 8 De G. M & G 133, (delay of ten years after execution of the gift), (4) Allcard v. Skinner, (1888) 36 Ch D 145, (six years' delay in revoking a grant to the sisterhood), and (5) Daing Sahara Binte Daing Tadaleh v. Chabak Binte Lasaliho, AIR 1927 PC 148, (only three years' delay after execution of the gift).

(v) Such rule, with regard to mortgages, must necessarily be far less stringent than the rule with regard to gifts, the outlook in one being different from that in the other. In the case of a mortgage, there is quid pro quo; property placed by one as security and money lent by another on such security. A gift, however, is a one-way affair only. So, the long delay I see here counts all the more against Nandorani,

(vi) No undue influence by Moti Lall upon Nandorani nor any hostility between the two is either alleged or seen, Nandorani's evidence that she signed blank papers being plainly untrue.

16. And once it is established, as it is established in the case on hand, that the two mortgages are the spontaneous and well-understood acts of Nandorani, inevitable indeed in the circumstances then prevalent, there is no reason for disregarding them, merely because there is no independent advice from a lawyer: just the law laid down in the (2) Inche Noriah case, 1929 AC 127=AIR 1929 PC 3 (supra) in the case of a gift--a law which applies a fortiori to the case of a mortgage.

17. Even in the case Mr. Guha cites,--Mr. Sen appearing for the plaintiff LIC cites it too,--(6) Farid-un-nisa v. Mukhtar Ahmad , Lord Sumner, relying on an earlier authority, says:--

'Independent legal advice is not in itself essential.'

But what Mr. Guha relies upon for in this case is that the actual import of the wakfnama executed by Farid-un-nisa was not brought home to her. So it went down. Can that however be said of Nandorani upon the whole of the evidence? Let it be remembered that the wakfnama, presented to Farid-un-nisa for execution was substantially different from that she had set her mind upon. It is impossible to say so, as Mr. Sen rightly contends, of Nandorani. She, the whole of the evidence completely satisfies me, had intended to execute two plain mortgage-deeds. And she executed just that: two mortgage-deeds. No variation between what she had intended and what she executed in fact is seen here. Indeed, the first mortgage was explained to her by her solicitor, Mr. H. N. Sen, and the second by the mortgagee company's solicitor. Mr. N. K. Roy. A mortgage is a mortgage, with no complexity of the disposition, as in the wakfnama, and with little unfamiliarity anywhere. More, her husband-- and who could lock to her interest more?-- was there when the instruments were so explained. Law, no doubt, throws a cloak of protection round a pardanashin woman as Nandorani is. The cloak here is all the greater, as the instruments of mortgage are in the English language which she does not know. She can only sign her name in English. Even then her solicitor explained the first mortgage, and the mortgagee company's solicitor the second one, her husband having been present on each occasion. So, what more is needed to prove free and intelligent execution of the two instruments by her? Let not the doctrine of law throwing a cloak of protection around a pardanashin woman be pushed to the extreme verge so 'as to demand the impossible', as Lord Sumner puts it in the (6) Farid-un-nisa case (supra).

18. Only another case Mr. Guha relies upon: (7) Amir Alam v. Bibi Salma, a Bench decision of the Patna High Court, reported in : AIR1952Pat19 . The facts in this case are so extraordinary that free and intelligent execution of the three impugned deeds by Ayesha, about sixty years of age, in favour of her brother's son, an orphan, she had taken charge of, when he was a lad of four only, was regarded as out of the question. That nephew, when come of age, looked after his aunt Ayesha's affairs. So, there grew a fiduciary relationship between the two. More, the reading and explaining of the impugned documents left everything to be desired. No near relation of Ayesha, blind at the time, present then, except this nephew; non-examination of the scribes who explained the documents to her; mere students explaining the documents on two occasions; one competent person explaining on one occasion, but it being doubtful whether the woman to whom he had so explained was Ayesha or not; conduct of Ayesha so inconsistent with the deeds by which she had parted with all her immoveable property:--such are the features in the (7) Amir Alam case, : AIR1952Pat19 , nothing like which can be predicated of Nandorani. So, it appears to be an irrelevant citation which cannot reach the case on hand.

19. Mr. Sen, on the other hand, cites four authorities which I review, one by one. (8) Ismail Mussajee Mookerdam v. Hafiz Boo, (1906) 33 Ind App 86 (PC), is a case where the son, with whom, for whose antecedents, his mother was on terms of bitter hostility, failed to set aside the transfers made by the mother in favour of her daughter, to the total exclusion of her suing son, her dementia having not been proved, and undue influence of the daughter over her mother having neither been alleged nor investigated nor proved. Just so is here, about the undue influence of Moti Lall over his wife Nandorani. (9) Sunitibala Debi v. Dhara Sundari Debi, (1919) 46 Ind App 272 = 24 Cal WN 297, is a case, the ratio of which, in so far as it is material for the case on hand, is that it is rot necessary to prove a Hindu pardanashin lady understanding each detail of the compromise giving rise to a mortgage executed by her, and that it is sufficient to prove her understanding the general result of the compromise, with the aid of people, disinterested and competent, to give her advice. Here Solicitor H. N. Sen and Moti Lall fall pre-eminently under that class. (10) Kundan Lal v. Mt. Mushrafi Begam , reveals that an illiterate pardanashin wife executed a mortgage-deed mainly to discharge her husband's debt. And that having been found upon evidence, it was held that the law should not be so interpreted as to make it impossible for a pardanashin wife to give security for her husband's benefit, for, that would be converting a principle of protection into a disability. In case on hand, the facts appear to be so much the stronger. Nandorani executed the mortgages for making the allotment to her viable for the benefit of all--her husband, children and children's children including herself. It is not difficult to imagine what would have befallen to her allotment if she had not made it separate and independent in terms of the directive of the commissioner for partition. And she could not have done so, but for the loans raised. So, let not the cloak of protection, which Nandorani can certainly avail of, degenerate, upon all I see here as to free and intelligent execution by her of the two mortgage-deeds, into taboo of disability. And if it be regarded that the mortgages were for the benefit of Moti Lall alone, one who used to run into periodic insolvency, as is Mr. Guha's contention, even then they cannot go down, so long as Nandorani's free and intelligent execution is there--and it is there. In (11) Mt. Kharbuja Kuer v. Jang Bahadur Rai, : [1963]1SCR456 , is emphasized the burden of proof, resting on the person who seeks to sustain a transaction entered into with a pardanashin lady, no less such burden being discharged by proof of the document being explained to her and also by other evidence, direct and circumstantial, so as to show that she understood it. That is just what I see here upon evidence. The burden of proof on L. I. C. has amply been discharged by the direct evidence of Majumdar and so many circumstances discussed already.

20. I, therefore, find issues 2 and 3 in favour of L. I. C. and against Nandorani.

21. The fourth issue--the general one --on reliefs remains. The only finding it merits is that the plaintiff LIC is entitled to reliefs it prays the Court for, save that payments made by the defendant Nandorani since the institution of this suit be deducted from the total claim made.

22. In the result, there must be judgment for the plaintiff for Rs. 50,247.71 paise minus such amounts paid by the defendant since the institution of this suit, and that too in terms of prayers (a) and (e) of the plaint. No interest from the date of the suit. Decretal dues so calculated to be paid within six months from today.


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