A.K. Sinha, J.
1. These second appeals are preferred by the plaintiffs in a cross suit against common appellate judgment and decree dismissing her suit and decreeing the earlier suit of the respondents briefly in the following circumstances :
The respondents in the present appeals filed a suit for declaration of their title and possession and for partition of certain immovable property on the basis of a registered conveyance executed by the deceased mother of the present appellant in favour of the minor respondent, son of respondent No. 1 being title suit No. 1 of 1961 in the third Court of Subordinate Judge at Howrah. Their case inter alia was that the executant in order to defray the expenses of litigation, maintenance, medical expenses etc. had to incur loans and for repayment of these loans she sold the disputed property in consideration of a sum of Rs. 5,000/-. But as the purchasers could not get possession owing to the obstruction caused by the present appellant and her men, they were compelled to take recourse to law.
2. In this suit the mother of the present appellant was defendant No. 1 and the appellant was defendant No. 2 and the defendant No. 3 was the son of the defendant No. 1. There were other pro forma defendants who were also made parties, possibly, for the purpose of partition of the disputed property. The joint defence taken by the defendant Nos. 1, 2 and 3 in their written statement was, in substance, apart from the general denial of material allegations that the mother of the present appellant Lilia was an old, Pardanashin, illiterate woman of over 80 years and she was pursuaded to sign the document of conveyance without knowing the contents thereof and without the document being read over and explained to her on the impression that the conveyance was really a deed of mortgage for Rs. 1,400/- which she incurred as loan from the father of the purchaser namely the respondent No. 1. Further specific case was that the conveyance was fraudulent, collusive and obtained by the father of the respondent No. 1 under undue influence and coercion taking advantage of the helpless condition of the mother of the appellant.
3. Later in 1962 Lilia and her daughter the present appellant filed another suit exactly on the line of the defence taken in the earlier suit by them against the present respondents, inter alia for a declaration that the disputed conveyance was illegal, void and inoperative and fraudulent and for cancellation of the document with other consequential reliefs. The present respondents contested this suit and their defence was, in substance, the repetition of the allegations made in their plaint instituted by them earlier in 1961.
4. Both the suits were taken up together for hearing and the learned trial Court on the evidence found that the document of conveyance was not read over and explained to the mother of the present appellant and she executed the document without knowing the contents thereof. It was also found that the document in question was 'fraudulent and mala fide and without consideration.' Accordingly, it held that the conveyance in favour of the respondent No. 2 was void, invalid and not binding upon the present appellant or her mother. In that view of the matter the trial Court dismissed the suit of the respondents and decreed the suit of the present appellants. On appeal the appellate court took a contrary view and found against the appellants on all points and decreed the suit of the present respondents and dismissed the suit of the appellant. That is how, in short, the appellants felt aggrieved and preferred the present appeal in this Court.
5. In our opinion, the appellate court below made totally a wrong approach to the real question in controversy in the suit. It is true that the question as to whether a document was read over and explained to the executant or whether she executed such document knowing the contents thereof is essentially a question of fact. It is also true that if on a finding on question of fact the appellate Court has believed certain witnesses, rejected by the trial court, it will not be open to this court in Second Appeal again to interfere with that finding of fact. But then the learned appellate court here, even in case of a Pardanashin, illiterate woman has taken the view that the executant of the document on which the title of the other side is founded in this case, must first discharge the onus of proving by some evidence that she had no independent advise or she did not understand the nature of the deed. When such onus is discharged the onus would be shifted, it is held, to the defendant who must satisfy the court that the nature of the document was duly explained and was properly understood by the executant. The appellate Court thus thought that this was the decided principle of law. In aid of such supposed principle the learned appellate court referred to a decision of the Judicial Committee in 48 Cal LJ 412 = (AIR 1928 PC 303), (Ruhulla v. Hassanalli Degumia). On a fair reading of this decision, we think, the learned appellate court below failed to appreciate the principle laid down by the Judicial Committee. This decision really repeats the enunciation of well established principle on the question of onus of proof in case of a document executed by Pardanashin lady purporting to dispose of her property. In this case also it has been observed by the Judicial Committee inter alia as follows :
'In the case of disposition of property by a Pardanashin lady, specially when she is illiterate, a very heavy onus is cast on those supporting her disposition to establish that the transaction was one which the disponent thoroughly comprehended and deliberately and of her own free will carried out.'
On the facts of this case the Judicial Committee while holding that such burden has been satisfactorily discharged it has further observed that
'while it is important to maintain the principles of law laid down for the protection of Pardanashin ladies, it is also important not to transmute such a legal protection into a legal disability.'
It is, therefore, quite clear that this decision does not support the principle, as stated by the appellate Court, that in case of dispute regarding the onus of proof as to whether a particular document executed by Pardanashin or illiterate woman was executed by her knowing the contents thereof and whether such document was read over and explained to her, onus will first lie on the person who executes such document. The learned appellate court also cited a Bench decision of this Court in 34 Cal LJ 529 = (AIR 1922 Cal 203), (Satish Chandra v. Kalidasi Dasi), judgment delivered by Sir Ashutosh Mookerjec. We equally do not find any departure from the principles enunciated by the Judicial Committee in this case. It would be useful to refer in this connection to the decision, as relied on by Mr. Mitter on behalf of the appellants, of the Supreme Court in Mst. Kharbuja Kuer v. Jang Bahadur, : 1SCR456 , where again the principle as to the protection to be afforded to the Pardanashin or illiterate woman was laid down. In this case also, it would appear, the Supreme Court on a review of long line of cases adopted the principle laid down by the Judicial Committee and in substance has held, amongst other things, that
'the burden of proof shall always rest upon the persons who seek to sustain a transaction entered into with a Pardanashin lady to establish that the said document was entered into by her after clearly understanding the nature of the transaction. It should be established that it was not her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it but also by other evidence direct and circumstantial.'
It is true that while explaining the question of onus the learned appellate court below also has stated 'that there must be evidence that the deed was actually executed by her with a full understanding of what she was about to do' and the document was read over and explained to her. But the entire evidence was examined and scrutinised by the appellate court below on a wrong notion of onus of proof in a case where an old woman of over 80 years of age, if not Pardanashin, illiterate certainly, executed a document of conveyance where her clear case was that she wanted to execute a document not of sale but of mortgage. On a consideration of this point alone we are unable to sustain the judgment and decree of the appellate court but there are other points as well on merits.
6. Firstly, the appellate court though took notice of one of the most important facts that a Pleader who admittedly drafted the disputed document of conveyance and though available was not examined as a witness in this case. In fact, even according to the finding of the appellate Court below his name appeared in the list of witnesses on several occasions but he did not come to the witness box. No explanation has been offered by the respondent as to why the pleader could not be examined. Even so, the appellate court though fully conscious of the adverse inference to be drawn for withholding the evidence of such witnesses thought that it created merely a rebuttable presumption under illustration 'g' of Section 114 and such presumption from the evidence, as discussed by the court, stood rebutted. We think, however, that this approach, again, is wholly erroneous. We may say in passing that the Supreme Court had occasions to examine these provisions in some cases and it has been observed that in similar situation the court ought to draw an adverse inference against the persons who withhold such evidence. (See : 1966CriLJ68 , Sahoo v. State of U. P. and : 3SCR862 , Gopal Krishnaji v. Md. Haji Latif). In almost similar cases of not giving the evidence of one of the most important witnesses, the Judicial Committee dismissed the entire suit (See Gurbaksh Singh v. Gurdial Singh, 32 Cal WN 119 = (AIR 1927 PC 230). In any case, the appellate court failed to express how and on what ground the presumption created under Section 114 of the Evidence Act stood rebutted for failure of the respondents to examine the lawyer. In our opinion, the trial court is right in its view that the lawyer was the most important witness and the onus of proving lay heavily on the respondents to prove that the document was obtained as a document of conveyance and the mother of appellant No. 1 actually signed the document knowing the contents thereof and it was also read over and explained to her. It is right that lawyer not having been examined on the facts of this case the onus remained undischarged by the respondents.
7. Secondly, we find that there was a departure from normal practice in this case for, the document in question did not contain any memo of consideration which according to the respondents was Rs. 5,000/-. It is not explained by any of the witnesses on behalf of the respondent either by the writer or any other person or the person who read over and explained the document as to why there was such an omission in this case. The appellate court below, it seems, did not attach any importance to this aspect of the matter. It is true that mere omission to insert a memo of consideration in a document of conveyance will not, by itself, vitiate the document but such omission or failure has to be examined together with other evidence and surrounding circumstances. In the given case in question, we think, the trial court has rightly stressed this aspect of the matter for it is, again, the clear case of the appellants that she was persuaded to sign this document on representation that this was a document of mortgage for Rs. 1,400/- which she incurred as a loan from the respondent No. 1. It is well established that failure to consider important evidence or important surrounding circumstances would constitute an error of law and it would be open to this court in that situation to interfere in second appeal.
8. Thirdly, the appellate court has, in our opinion, while analysing English Law on the point failed to take notice of the provision of Section 16 of the Contract Act. Whatever may be the principles enunciated in English cases, where law is specific, it would be right and proper that that law should be followed. Mr. Mitra on behalf of the appellants has pointed out, we think, rightly, from the illustration under Section 16 of the Indian Contract Act that where there is relation between the parties as debtor and creditor it may be presumed that the creditor would stand somewhat in a fiduciary relation to the other party. It seems clear that the respondent No. 1 who was admittedly the creditor of the mother of the appellant was certainly in a position to exercise his influence and make misrepresentation about the document she was going to execute. In this case the appellate Court was clearly wrong in its view that no influence could be exercised by the respondent No. 1 merely because he was a creditor to the deceased mother of the appellant No. 1.
9. Fourthly, the appellate court below also failed to consider the evidence of the witnesses adduced on behalf of the respondents. The trial court on a careful consideration has found that all the witnesses were interested. They could not be relied upon as independent witnesses in this case. It is true that appellate court is free to believe such witnesses but it is equally true that they should not be believed unless there arc certain special features or compelling reasons to believe the evidence of such witnesses rejected by the trial court. In this case, as appears the appellate court below has not considered the evidence of these witnesses of the respondents in that perspective nor has given any reason for believing these witnesses. So, even on finding of facts we think, the judgment given by the appellate court is not a proper judgment of reversal. As the whole question of fact is open, we have considered the evidence of the witnesses in this case and for the reasons given by the trial court we agree fully with the finding of the trial court that the respondents failed to establish that the document of conveyance was read over and explained to the mother of the appellant No. 1 Lilia, and that she executed the document knowing the contents thereof.
10. On the question whether the document was fraudulent and collusive it is true that the onus will lie on the party alleging such fraud, collusion, undue influence etc. (See the decision of the Supreme Court in Kharbuja's case : 1SCR456 (supra)). But this aspect of the matter has not been separately considered by the appellate court; on the other hand, it appears that the learned trial court on assessment of evidence adduced by both parties came to a finding as a fact that such fraud was established and we fully agree with the findings for the reasons given by the trial court.
11. Accordingly, these appeals are allowed. We set aside the judgments and decrees of the appellate court and restore the judgments and decrees of the trial Court. Under the circumstance of this case, there will be no order as to costs.
Sen Gupta, J.
12. I agree.