D.N. Mitter, J.
1. This is an appeal by the plaintiff from the decision of the Additional District Judge of 24-Parganas dated 26th January 1933 reversing the decision of the Subordinate Judge of the same district dated 27th March 1931 by which he decreed plaintiff's suit for declaration of title and recovery of possession of the properties mentioned in the schedule to the plaint. The case stated in the plaint is that the land in suit belonged to one Pecheruddi Mistri who died leaving him surviving him his son Belatali, his daughter Khatijan Bibi, (plaintiff) and his wife Abujan Bibi. Belatali died leaving behind him two wives, Nakjan and Kossiman, his sister Khatijan (the plaintiff) and his mother Abujan. Abujan is dead and plaintiff claims 6 annas 13 gandas 1 kara share of the property which she inherited from Pecheruddi and his heirs. It is further stated in the plaint that plaintiff's brother got an Ammukhtarnama executed by her and her mother and Nekjan Bibi, alleging that the execution of the Ammukhtarnama was necessary for the purposes of the management of their property, but the contents of the said Ammukhtarnama were never read over or explained to her, and that she never authorised Belatali to sell or mortgage any land of hers by this Ammukhtarnama and that she is an illiterate pardanashin, woman and that her husband and brother were both men of dissolute habits and that on the strength of this Ammukhtarnama Belatali executed a mortgage by way of conditional sale in the year 1324 B.S. in respect of 53 bighas odd (of which 35 bighas odd are the lands in suit and the remaining 17 bighas odd belonged to Nekjan Bibi) in favour of Haji Abdulla for Rs. 1,000 whereas the value of the property would be about three thousand rupees. As regards the 17 bighas land Nekjan brought a suit against Abdulla to set aside the kobala and was successful. The plaintiff further alleged that the document of 1324 B.S. really constituted a mortgage and has prayed for redemption of the same if the Court holds that the document binds her. Haji Abdulla is now dead and defendants 1 to 8 are his heirs and legal representatives. To this suit to avoid the document or in the alternative to redeem, plaintiff joined the prayer for declaration of title and recovery of possession. The defence of the defendant is that there was no fraud or undue influence and that the deed in question was an out and out sale and not a mortgage by way of conditional sale. On these pleadings several issues were joined and they are set forth at p. 2 of the paper-book. Substantially three questions arose for determination before the Subordinate Judge: (1) Was the Ammukhtarnama executed by plaintiff and her mother after fully understanding the purport of the same? (2) If not was the conveyance in favour of Abdulla binding on the plaintiff? and (3) Was there any agreement between Belatali and the defendant's predecessor Haji Abdulla that defendant will reconvey the property in suit on the repayment of Rs. 1,000
2. The Subordinate Judge found (1) that there is no evidence that the Ammukhtarnama (of which only a certified copy was produced in Court) was read over and explained to plaintiff and her mother; (2) that the power of attorney was executed under undue influence; (3) that the sale on the strength of this power of attorney or Ammukhtarnama was not binding on the plaintiff or her mother and that the plaintiff was entitled to a declaration of title to the share claimed less the share which she inherited from her brother Belatali after his death; and (4) that the deed in question was an out and out sale and not a mortgage by way of conditional sale. The Subordinate Judge accordingly declared plaintiff's title to 5/12ths share in the property in suit and directed that she do get possession of the same.
3. Against this decree an appeal was taken to the Additional District Judge of 24-Parganas. The learned District Judge states rightly enough that the question to be decided is whether Abujan and Khatijan did understand the nature of the transaction when they executed their Ammukhtarnama but does not come to a definite finding on the question. The Subordinate Judge whose finding the learned District Judge was reversing, came to the distinct finding that there was no evidence that the Ammukhtarnama was read or explained either to plaintiff or her mother. The learned District Judge finds that 'it may well be true, as was alleged, that at the time the Ammukhtarnama was executed plaintiff was a young and inexperienced girl' and one would have expected that the lower appellate Court should have held that the rule laid down by their Lordships of the Judicial Committee of the Privy Council in a number of cases that in the case of deeds and powers executed by Pardanashin ladies it is requisite that those who rely on them should satisfy the Court that they have been explained to and understood by those who execute them, should apply with greater force having regard to the illiteracy, youth and inexperience of plaintiff and her mother and their liability to be influenced or imposed on by near relations like her brother or son who are alleged to be men of weak character and immoral habits: See Sudhist Lal v. Sheobarat Koer (1881) 7 Cal 245 and Shambati Koeri v. Jago Bibi (1902) 29 Cal 749.
4. These strict rules regarding the burden of proof of persons dealing with Pardanashin ladies have been laid down as Lord Sumner pointed out in a recent case 'for the protection of the defenceless in India, and it is a matter of obligation upon their Lordships to be strict and unwavering about it:' Faridunessa v. Mukhtar Ahmad 1925 P C 204. In arriving at the conclusion that the Ammukhtarnama is valid what are the considerations that have weighed with the lower appellate Court? They are: that the suit is brought eleven years after the execution of the kobala, in 1324, during which period it was not disputed by either Abujan or Khatijan. This reasoning of the learned Judge assumes that the plaintiff or her mother knew of the kobala as from the date of its execution. The learned Judge does not refer to such evidence or discuss the same. The next consideration of the learned Judge is 'but a perusal of her examination and cross-examination taken on commission shows that she is far from being a helpless or uneducated woman now.' The fallacy in this reasoning is that the matter has to be considered with reference to the material date, viz., the date of execution of the Ammukhtarnama which is many many years prior to the date she was deposing on commission when she may be more experienced in the world's affairs and less entitled to the protection given to illiterate Pardanashin women. The learned Judge in appeal proceeds to observe:
The fact that so long a time did elapse before the suit was instituted raises considerable doubts in my mind as to the good faith in which it is now brought, and the law is not to be twisted to protect actions which are not brought in good faith.
5. This reasoning seems to me to be again vitiated by the assumption that the plaintiff knew of the execution of the deed of sale from the year 1324 B.S.: Then the learned Judge proceeds to find that the fact that she had knowledge regarding a mortgage executed by her husband along with Belatali in 1913 and her acquiescence during subsequent years now estops her from calling it into question. The learned Judge does not find that this mortgage was with reference to the property now in suit; on the other hand the finding of the Subordinate Judge is that there was a forced acquiescence on the part of Khatijan Bibi in regard to the sale on the basis of mortgage executed by her husband and Belatali: see page 4 lines 20-30 of the Subordinate Judge's judgment in the paper book. We are of opinion that there has not been a definite finding of the lower appellate Court on the main issue as to whether the Ammukhtarnama was read over and explained to Khatijan or her mother after an analysis of the relevant evidence on the point. We accordingly set aside the judgment of the learned District Judge and direct him to rehear the appeal on two questions: (1) Whether the Ammukhtarnama was read over and explained to both plaintiff and her mother and whether they executed the document after fully understanding its purport and not being under undue influence; and (2) what is the extent of the share of the plaintiff in the disputed property? If the learned Judge finds that the burden of proving the affirmative of Question No. I has been discharged by the defendants he will dismiss plaintiff's suit and it will not be necessary to determine point No. 2. If the appellate Court answers Question No. I in the negative it will determine plaintiff's share and give her a decree for such share. Both Courts have concurrently found that the document which is sought to be avoided is an out and out sale and we do not disturb the finding which will not be re-opened again. Costs are to abide the result. We express the hope, however, that instead of prolonging this litigation parties will reach a settlement.
S.K. Ghose, J.
6. I agree.