R.P. Mukherjee, J.
1. The suit out of which this appeal has arisen was instituted in the Court below by appellant Sm. Patal Bala Debi for a declaration that a deed of gift alleged to have been executed by her in favour of the defendant-respondent on 10th Sravan, 1355 B.S. is fraudulent, illegal and inoperative. The subject-matter of the alleged gift is a pueea residential house in village Kasundia within police station Sibpore and Howrah town.
2. The allegation of the plaintiff in brief was that the defendant, who is a distant nephew of plaintiff's deceased husband Harigopal Chatterjee, used to live at Halisahar and work in Dunlop Company. He began to visit the plaintiff at her house at Kasundia for some time prior to the execution of the disputed document and by professing care and affection for the plaintiff, he gradually wormed himself into her confidence and brought her under his influence. The plaintiff had some lands of her husband in village Satberia within the district of 24-Parganas which were looked after by one Jagabandhu Chakraborty, a distant agnate of her husband. The plaintiff did not get her due share of the profits from those lands and this fact being brought to the notice of the defendant, he proposed to look after these properties if a deed of management was executed in his favour by the plaintiff. The plaintiff agreed to this proposal whereupon she was taken to the Registry Office at Howrah and the defendant got a deed of his own choice executed by her on 10th Sravan, 1355 B. S. corresponding to 26-7-1948 which was registered on 9-8-1948. The plaintiff is an illiterate pardanashm woman and the contents of the deed were never made known to her and she did not receive any independent advice in the matter and signed the deed without knowing it to be a deed of gilt. It was further averred by the plaintiff that she came to know about the real nature and purport of the deed when the defendant demanded rent from the tenants of the house on 28-11-1948. The suit was thereafter instituted on 7-12-1948.
3. The suit was contested by the defendant. His defence was that the deed of gift represented a genuine and bona fide transaction and the disposition of the property was the outcome of plaintiff's voluntary and independent action uninfluenced by any persuasion on the part of the defendant. It was further alleged by the defendant that the plaintiff is not a pardanashin woman and she executed the deed after having consulted her neighbours and relations and the contents of the deed of gift were read out to her who executed the same after fully apprehending the nature and purport of the deed. It was also alleged by the defendant that simultaneously with the execution of this deed, the defendant executed a bond in favour of the plaintiff agreeing to pay her a monthly allowance at the rate of Rs. 15/- and this bond was accepted by the plaintiff.
4. The defence of the defendant found favour with the trial Court which dismissed the suit. So the plaintiff has preferred this appeal.
5. The suit was dismissed principally on two findings: first, that the plaintiff-appellant is not a pardanashin woman and so no onus lay upon the respondent to prove that there was an intelligent execution of the deed in question by the appellant in the sense that she executed the deed after sub-stantially apprehending the nature and effect of the dispositions made by the deed, Secondly, it was held by the Court below that in order that the appellant aught succeed in the suit it was incumbent on her to prove the specific fraud alleged by her and she has failed to substantiate her allegation of fraud. The propriety and correctness of both these findings were challenged by Mr. Mitter on behalf of the appellant in this appeal.
6. As regards the first 6f the two findings mentioned above, Mr. Mitter submitted on behalf of the appellant that he does not dispute the trial Court's finding that the appellant is not a pardanashin strictly speaking, but he contended that the appellant being an illiterate woman and the validity of the deed having been questioned by her, the privileges and protections given to a pardanashin woman should have been extended to the appellant and the party relying upon the deed, namely, the respondent should have been asked to prove that the appellant's Action was intelligent and voluntary. In support of this contention, Mr. Mitter relied on a recent decision of this Court reported in -- 'Sonia Parshini v. Sheikh Moula Baksha',. (S) : AIR1955Cal17 (A). That the appellant is an illiterate woman for all practical purposes cannot be seriously disputed. Her evidence shows that she had only read izFkeHkkx and her literacy did not go further, The signatures which she admittedly made in the impugned deed of gift are mere scribblings. We, therefore, hold that the appellant should be regarded as an illiterate woman for all practical purposes.
7. Mr. Lala appearing on behalf of the res-pondent contended, on the other hand, that a woman who is not a pardanashin is not entitled to get the protection given by law to a pardanashin woman by reason of her illiteracy alone, but she must prove before the protection can be made available to her that she had no capacity for business or that she was incapable of managing her own affairs. Mr. Lala submitted that mere illiteracy in a man or woman does not necessarily connote an incapacity for business on his or her part. In support of his above contention, he relied on the case of -- 'Hodges v. Delhi and London Bank Ltd.', reported in 27 Ind App 163 (PC) (B) and he submitted that if the decision reported in (S) : AIR1955Cal17 (A) meant to lay down the broad proposition that an illiterate woman who is not a pardanashin, is entitled by reason of her illiteracy alone, to all the protections afforded by law to a pardanashin woman, then it must be held that that decision has some measure of conflict with the Privy Council case reported in 27 Ind App 168 (PC) (B). In the present case, however, it would not be necessary for us to enter into and decide this controversial question of law in view of our finding on the question whether the deed of gift was the outcome of any fraud or malpractice practised by the respondent on the appellant,
8. This at once brings us to the second finding of the trial Court challenged on behalf of the appellant, namely, that the appellant had failed to substantiate the specific case of fraud which she has alleged in the plaint. We shall now examine for ourselves whether this finding of the trial Court can be supported.
9. It is brought out in evidence that the plaintiff is a woman who was aged 36 or 37 years at the time when the impugned deed of gift was executed. It is an admitted fact that the property comprised in the deed of gilt is her only residential house. There are four bed-rooms in that house with two kitchens. It also appears from evidence that the appellant herself lives in one of the rooms and cooks her food in one of the kitchens. The remaining portion of the house has been let out to a tenant Provash Chandra Mitra, P. W. 1. The arrangement between the appellant and her tenant is that the tenant would supply her with all articles necessary for her maintenance and would give her Rs. 12/- in cash every month. It is in evidence that this arrangement is being respected by the tenant of the appellant. It further transpires from evidence that the appellant has got lands of her deceased husband in village Sat-beria. The appellant's case is that her due share of profits arising from those lands was not given to her by one Jagabandhu Chakraborty who is in charge of the management of those properties and when this fact was brought to the notice of the defendant who is related to her as a distant nephew of her husband and who began to visit the plaintiff for about a year before the execution of the impugned document, the defendant proposed that he would look after those lands provided a deed of management was executed in his favour. The plaintiff's definite case is that on the pretext of taking a deed of management from the appellant, the respondent has obtained a deed of gift from her for some ulterior motive of his own.
10. The main evidence on the appellant's side on the question of fraud came from the appellant herself. Her witnesses were not certainly present at the time of the execution of the deed of gift and so they were not in a position to give any direct evidence on this question. On the side of the respondent, four witnesses were examined on this point including himself. Of these witnesses, scribe Renupada Ghosh, D. W. 4, was one, Sk. Nurejjamma, D. W. 3, an attesting witness to the deed of gift was another and Dayamoy Roy, D. W. 5, was the third. The scribe and the attesting witness have of course told the usual story, namely, that the document in question was written under plaintiff's own direction. It is to be seen how far the evidence of these two witnesses is credible. It is significant that not a single neighbour of the appellant was called to be present at the time of the execution of the deed. The scribe was a professional deed-writer and the two attesting witnesses Nurejjamma and Abdul Kayem were Mahomedan deed-writers of Howrah Registry Office. An attempt was made to show that one Nagen Bag, who is since deceased, also attended the transaction and gave instructions on behalf of the appellant. This Nagen Bag was admittedly a neighbour and well-wisher of the appellant, Had he been actually present at the time of the execution, it is certain that the respondent would have taken the precaution of including his name in the list of attesting witnesses. This was not done. We are, therefore, convinced that the story that Nagen Bag was present at the time of the transaction was improvised on the side of the respondent for the purpose of lending a colour of truth to his case. We are not at all impressed by the evidence of the scribe or Nurejjamma or of the defendant that the appellant executed the deed of gift of her own accord and with a full comprehension of the contents of the deed. We now pass on to consider the evidence of Dayamoy Roy, witness No. 5 for the respondent. If the evidence of this witness be carefully examined, then there would remain no room for doubt that the story of fraud alleged by the appellant is true. It is admitted by the respondent that the talk of the alleged gift took place at the house Of this witness at Birnagar some months prior to the execution of the deed. Dayamoy stated is his examination-in-chief that the appellant requested respondent Santi to look after her estate and Santi said that people would not listen to him unless she would give away all her properties to Santi. In his cross-examination this defendant stated more specifically that the deed of gift of the Howrah house was made with a view to give Santi facility to look. after the properties. We may usefully quote the following sentences from the cross-examination of this witness:
'During the talk at our house regarding the transfer of Howrah property for better management, it was not settled what exactly the deed would be. Subsequently after request Santi agreed to look after the properties if a deed was given. Patal did not say that she would be divested of the properties. She said that she would continue to live in the house so long as she lived.'
This evidence of Dayamoy Roy who was examined On the side of the respondent himself would conclusively show that the appellant never agreed to execute the deed of gift in favour of the respondent and the real agreement between the parties was that Patal would execute in respondent's favour a deed for better management of her properties at Satberia and Howrah. Having regard to the evidence of Dayamoy Roy, We are clearly of opinion that the appellant has deposed truthfully when she stated that she never executed a deed of gift in favour of the respondent and that the only agreement regarding the execution of a deed was that Patal would execute a deed of management in favour of the respondent. She, however, detected within a few months of the execution of the deed that it was in reality a deed of gift. There are also certain other circumstances which would lend strong support to the case of fraud made by the plaintiff in the plaint. The respondent wanted to make out a case in his written statement that the contents of the deed had been read out to the appellant. On this point the evidence is so divergent that we must hold that the deed was never read but or explained to the appellant. The scribe of course says that he read out the deed to the appellant. Witness Nurejjamma however has no recollection on the point and the respondent stated specifically that the appellant herself read out the document. Regard being had to the degree of literacy of the appellant, we must hold that this statement is deliberately false and the appellant could apparently never read out the document herself. There is no certificate in the deed of gift to the effect that it was read out to the appellant. In these circumstances, we must hold that the deed was never read out or explained to the appellant, a fact which is consistent only with the case of the plaintiff that the respondent took a deed of his own choice from the appellant and kept its contents concealed from her out of some fraudulent motive.
11. Some other circumstances under which thedeed of gift was executed would also go to showthat the story of fraud alleged by the appellant mustfee true. The appellant was living in a portion of the disputed house. The remaining portion was let out to a tenant who besides bearing the expenses of the maintenance of the appellant gave her Rs. 12/- in cash per month. The defendant's case is that, in consideration of the deed of gift, he in his turn executed a bond in favour of the appellant agreeing to give her monthly allowance at Rs. 15/-. There is no earthly reason why the appellant would agree to take a monthly allowance of Rs. 15/- only in lieu of her entire costs of maintenance plus Rs. 12/- per month in cash. It is recited in the deed of gift that the motive for the gift' was that the appellant was advancing in age and the respondent had been tending and nursing her and maintaining her with great care. These recitals are, on the face of them, false because it is an admitted fact that the respondent never maintained or looked after the appellant at any time in his life. The above recitals in the deed of gift must therefore have been inspired by some designing person. In our opinion, no woman in her sane mind would have executed such a document to her disadvantage unless her vision was clouded by the practice of some fraud and deception.
12. We, therefore, hold that the deed in question is vitiated by fraud and it must be declared asvoid and inoperative. The appeal must, therefore,succeed.
13. In the result, this appeal is allowed and the judgment and decree of the Court below are set aside.
14. It is hereby declared that the deed of gift dated 10th Sravan, 1355 B. S. executed by the appellant in favour of the respondent is fraudulent, illegal and inoperative and it is not binding upon the appellant In view of the circumstances of this case parties will bear their own costs throughout.
15. The title deed of the disputed property (Ex. 1) which was filed by the respondent will be returned to the lawyer for the plaintiff-appellant..
P.N. Mookerjee, J.
16. I agree.