1. This is an appeal by the plaintiff in a suit for enforcement of two mortgages purported to have been executed by defendants 1 and 2. One of these mortgage bonds in suit was dated 19th July 1926, and it was in favour of the father of the plaintiff; the other mortgage bond dated 15th August 1927, was in favour of the plaintiff himself; and the plaintiff prayed for a mortgage decree on the footing of the two afore said mortgages. The claim in suit was resisted by defendant 2, the wife of defendant 1, on the ground that she had no knowledge of the contents of the two documents in suit, and that she had not executed them. On the pleadings of parties, the question for decision in the case was whether defendant 2 executed the mortgage bonds with full knowledge of the terms of the bonds and with full knowledge of the transactions. The decision on that question arrived at by the learned Subordinate Judge in the trial Court was against the plaintiff and the plaintiff's suit was dismissed, so far as defendant 2 was concerned, on the ground that defendant 2 did not willingly or knowingly execute the bonds, and that defendant 2 was not liable for the loans on the bonds. There was a decree passed by the trial Court against defendant 1 alone for the money lent under the bonds in suit.
2. The plaintiff appealed to this Court; and it was urged in support of the appeal that on the evidence on record the Court below should have held that the plaintiff-appellant was entitled to a mortgage decree against both defendants 1 and 2, the mortgagors. The materials on the record have received our careful consideration. Before however dealing with the evidence in the case, we consider it necessary to refer to the proceedings before the Court below, leading up to the filing of the written statement by defendant 2 in the suit, which call for special notice in view of the position that the mortgage bonds in suit were executed jointly by the husband, defendant 1, who was Gharjamai and the wife, defendant 2, to whom the properties mortgaged belonged. The plaint in the suit was filed on 24th June 1932; there was appearance in the suit by both the defendants by one and the same vakalatnama on 21st July 1932, the same pleaders re-presenting them both. On the same date an application was filed on behalf of the two defendants, by one of the pleaders who accepted the joint vakalatnama, praying for time for filing written-statement after drafting the same on procuring necessary papers. Application for time for filing written-statement was again made by the two defendants jointly on 28th July 1932, on stating that necessary papers had not been procured till then. The third application for time for filing written-statement and after procuring papers was made on behalf of the defendants 'owing to the physical indisposition of the defendant who looks after the case,' and the written-statement that was ultimately filed on 23rd August 1932, was one by defendant 2. The material averments of fact made in that written-statement were those contained in ParaSection 10 and 11 of the same, which are set out below:
10. About six years before, defendant 1 informed this defendant, who has no knowledge of the affairs of the world, is inexperienced and is a Pardanashin woman, that she would have to execute a document as he was in need of some money and if necessary defendant 1 would also have to put signature to the said document. A few days after that defendant 1 again came and informed her that this defendant would have to go to Court and put her signature there to a document. This defendant accordingly went to the Registration Office in a carriage drawn by horses and sitting in that carriage she put several signatures on two occasions. This defendant never went to the house of the plaintiff and never signed any document there. This defendant does not know to read and write at all. She can only sign her name with great difficulty. No document was read over to this defendant by any one nor did this defendant put her signature after knowing and understanding the contents of the document. The plaintiff or his father did not pay any money to this defendant. This defendant did not obtain any money on the basis of that document.
11. One year after the above, defendant 1 told this defendant that she would have to go to the Registration Office again as she did last year and to sign her name there. Accordingly this defendant went to the Registration Office in a carriage drawn by horses and put several signatures sitting in that carriage on two occasions. This defendant never signed any document at the house of the plaintiff. Nobody read over any document to this defendant, nor did she put her signature after knowing the contents of any document. The plaintiff did not pay any money to this defendant nor did she receive any money on the basis of any document. The bonds in suit are not bona fide documents so far as this defendant is concerned.
3. It was with reference to the aforesaid statements that the points for decision in the suit, relating to knowledge of the mortgage transaction question, the execution of the same by defendant 2 were raised. The filing of a written statement by defendant 2 alone repudiating liability under the mortgages in suit in the circumstances cast a doubt as to the bona fides of the defence to the plaintiff's suit, and the circumstances to which reference have been made above, go to indicate community of interest so far as the plaintiff's claim under the mortgages was concerned, and in our judgment throws a great deal of light on the defence ultimately taken up by one of the defendants, resting upon grave aspersions on the other defendant, the husband.
4. The case before us is not one in which there is a question as to the good faith of a transaction between parties one of whom stands to the other in a position of active confidence, and where the burden of proving good faith of the transaction is on the party who is in a position of active confidence. The case before us was one in which the usual defence open to a pardanashin woman in this country was taken and in which evidence was adduced by both the parties and the relevant facts are before the Court, and the question of burden of proof was immaterial, and no importance was to be attached to the question on whom the initial onus lay. The entire evidence had to be considered, and on the consideration of the same, decision had to be arrived at.
5. The parties to the mortgage transactions in question were strangers, and in dealing with them it had to be considered whether one of the parties, a pardanashin woman, was or was not of such intellectual attainment as to be able to comprehend and understand the nature of the transaction, or had the full knowledge of the nature and effect of the transaction into which she is said to have entered. The mortgages in question purported to have been executed by defendant 2 on two different dates are couched in plain and simple language. They were signed by her on all the pages in which they were written. One of the mortgage bonds contains an endorsement that it was read over to the executant, defendant 2 and both of them contain the endorsements by the registering officers that the execution was admitted by defendant 2. The socond mortgage bond dated 15th August 1927, appears to have been presented for registration by Marani Dassi alias Hari Dassi Saha, defendant 2.
6. The execution of the mortgage bonds by defendant 2's attestation of the same, as also the reading over of the documents to her at the house of the creditor, the payment of the mortgage money after execution and deposit of title deeds by the mortgagors, have been proved by witnesses whom we find it impossible to disbelieve. There were discrepancies in matters of detail as between the witnesses speaking to events, after a long interval of time; but we are unable to hold on the evidence before us, that defendant 2 had no knowledge of the contents of the mortgage bonds, or that she did not fully understand the effect of the transaction evidenced by them. On the evidence coming from the plaintiff's side, the special defence raised by defendant 2 had not been established in any way. The part taken by the husband, defendant 1, as mentioned in the written statement of defendant 2, was undoubtedly in the nature of special pleas, resting on facts within the special knowledge of the party raising those j pleas; and it was, therefore, incumbent upon that party to establish her case founded on special pleas defendant 2 did not make a beginning of a case by leading evidence in support of the case stated by her in her written statement, and repeated in her evidence. The evidence of defendant 2, when examined in the light of the mortgage documents in question, and taken along with the evidence on the side of the plaintiff, which we see no reason to disbelieve in material particulars, appears to us to be altogether unreliable. On the question of defendant 2 being a pardanashin lady, who was inexperienced and who had no knowledge of the affairs of the world, arising on her statements in the written statement, we have arrived at the definite conclusion that her deposition in the case goes against her. She starts with the statement in her examination-in-chief that she was aware of the rate of interest on Rs. 100 or Rs. 150 four or five years back. She asked her husband about the necessity for raising money on loan, but was snubbed by him; but the enquiry about the transaction was there. There was knowledge on her part of deposit of papers, when the loan was raised; and certain documents relating to title to property were left in the custody of the plaintiff. The documents were not brought back and they were with the plaintiff. She had money-lending business previously, although it was her father who used to look after the business. It could not be suggested that a woman of the defendant's position was competent to look after a business, unaided by her male relation.
7. The evidence of defendant 2 does not enable us to hold, on the facts and circumstances appearing from evidence, that she was a person in whose case, it was necessary for a creditor suing upon a mortgage to establish that she had independent and disinterested advice when entering into the mortgage transactions in question. Defendant 2 was, regard being had to her intellectual capacity and experience of the world, fully able to comprehend the nature of the mortgage transaction, and the application in the case before us, of the general principles and formulae applicable to a case of a pardanashin woman would undoubtedly lead to denial of justice to an honest creditor, who on the evidence, took all necessary precautions in the matter of transactions to which defendant 2 was a party.
8. The facts and circumstances of the case before us lead to the definite conclusion that the mortgages sought to be enforced by the plaintiff in the suit, were binding against defendant 2 and that the defence of that defendant denying her liability under the mortgages was not a bona fide one. As it has been indicated already, independent legal advice is not essential, and is not necessary in every case; and the mere declaration by the lady subsequently made, that she had not understood what she was doing, was not, obviously in itself, conclusive; it is sufficient if the person enforcing a transaction establishes that the document evidencing the same was the free intelligent act of the lady; the evidence in this case satisfied that test. It is now settled that a pardanashin woman is entitled to receive, in the Courts in this country, that protection which the Court of Chancery in England extends to the weak and infirm and to those who for any other reason are specially likely to be imposed upon by the exertion of undue influence over them.
9. That is not however the case now before us. Defendant 2 in the case before us was not upon her own evidence, a person who required any special protection, and in regard to whom it could be presumed that any sort of undue influence was exercised by her husband, defendant 1, or by the creditor, who was a stranger, and the evidence coming from the plaintiffs establishes the facts necessary to make the transactions of mortgage binding on her namely that the transactions were fair and that defendant 2 fully understood the acts to which she was subscribing. The result of the conclusions we have arrived at, as mentioned above, is that we are unable to express agreement with the decision of the Court below that Defendant 2 did not willingly or knowingly execute the two mortgage bonds in suit, and that she was not liable for the loans of the bonds. The appeal is allowed; the judgment and decree of the Court below, so far as they relate to defendant 2 in the suit are set aside and the plaintiffs suit is decreed against both defendants 1 and 2 with costs throughout, including the costs in this appeal. An usual mortgage decree in favour of the plaintiff appellant and against defendants 1 and 2, respondents in this appeal, will be drawn up in this Court, in supersession of the decree passed by the Court below.