Sir Shadi Lal:
This appeal has been brought from a decree of the High Court of judicature at Allahabad dated 12th November 1931, which reversed a decree of the Additional Subordinate Judge of Shahajahanpur, dated 18th September 1928, and dismissed the appellant's suit with costs. The plaintiff, who is the receiver of a firm known as Sahi Mal Manohar Das, brought the suit, which has given rise to this appeal, to enforce a mortgage executed on 1st November 1916 in favour of the firm by one Mt Imam Begum and her son Bashir Udd. The mortgage was made in order. secure the repayment of Rs. 7,500 with interest thereon at Rs. 9 per cent per annum.
The claim was resisted by Mt. Imam Begum, who denied the execution of the mortgage deed and the receipt of the consideration. She pleaded that she was a pardanashin lady, and was, at the time of the execution of the mortgage old as well as deaf; and that she was not hound by the transaction, as the deed was neither read out, nor explained to her. She described her son Bashir Uddin to be a spendthrift, and repudiated her liability for the loan, if any, contracted by him. The trial Judge found that the mortgage deed was executed by both the defendants for consideration, that its terms were explained to Mt. Imam Begum, and that she understood the nature and effect of the transaction. He accordingly granted a preliminary decree for sale in accordance with the provisions of O.34, R.4, Civil PC. This decree was made the subject of an appeal by Mt. Imam Begum to the High Court of Judicature at Allahabad. During the pendency of the appeal the lady died, and her grandson was impleaded as her legal representative. The learned Judges, who heard the appeal, concurred with the trial Judge,
" that the document was read over to her by the Sub-Registrar at the time and that an attempt was made to explain it to her,"
but considering that she was old, illiterate and deaf, they came to the conclusion that there was "no satisfactory evidence to prove that it was really understood by her." On the question of the liability of Bashir Uddin they found that he had no interest in the mortgaged property, and that his personal liability could not be enforced after the expiration of six years from the date of the mortgage. The appeal was accordingly allowed and the suit dismissed with costs. The determination of this appeal which has been preferred by the plaintiff depends upon a question of fact. It is settled law that in the case of a document executed by a pardanashin woman it is not sufficient to show that the document was read out to her; it must further be proved that she understood its nature and effect. The quantum of evidence required to discharge the onus must depend upon the circumstances of each case. The more fact that the woman lives in seclusion or sits behind a pardah does not necessarily show that she is weak-minded, ignorant or incapable of understanding her affairs. Any general proposition ascribing to her such incapacity would be at variance with actual facts. It is however clear that the Courts, in their anxiety to protect pardanashin ladies, have repeatedly affirmed the doctrine that a person, who is interested in upholding a transaction with pardanashin woman, has to prove, not only that the deed was executed by her, but also that it was explained to, and was really understood by, her.
In the present case, it is not disputed that Mt. Imam Begum was not only a pardanashin lady but also illiterate. She was, at the time of the transaction in question, old and infirm, and is found by the High Court to be "hard of hearing and very deaf." Whatever may be the meaning sought to be conveyed by this phrase, there can be little doubt that her sense of hearing was impaired and that special care was needed to explain to her the terms of the document. It does not appear that such care was taken by the Sub-Registrar. In view of all the circumstances the learned Judges of the High Court decided that the evidence for the plaintiff did not go so far as to show affirmatively that the terms of the deed were understood by the lady. The principle is well established that in an appeal the burden of proving that the judgment appealed from is wrong rests upon the appellant, and that he does not discharge that onus by merely showing that there is an equal possibility of the judgment in favour of one party or the other being correct. After giving full consideration to all the circumstances relevant to the issue of whether Mr. Imam Begum understood the transaction, their Lordships find themselves unable to hold that the judgment of the High Court is wrong.
The learned counsel for the appellant has also urged that the case against Bashir Uddin should be treated as one of fraud to which S. 18, Lim. Act 9 of 1908, would be applicable. He has contended that Bashir Uddin represented himself to ha joint owner of the mortgaged property, and that the plaintiff was, by reason of that fraud, prevented from instituting the suit within the period of six years prescribed by law. It is unnecessary for their Lordships to deal with the merits of the question. It is clear that the contention was never put forward in either of the Courts in India, and that, while O. 7, R. 6, Civil PC, provides that where the suit is instituted after the expiration of the period prescribed by the law of limitation the plaint shall show the ground upon which exemption from such law is claimed, no exemption on the ground of fraud was claimed in the plaint. Nor is there any proof of the alleged fraud, or of the date when it became known to the plaintiff. The claim for a personal decree against Bashir Uddin is clearly barred by, the statute of limitation. Their Lordships will therefore humbly advise His Majesty that the appeal be dismissed with costs.