Madras High Court
Hameed Ghosh Beevi And Another vs Abdul Hayoom And Another on 5 March, 1999
Equivalent citations: 1999(2)CTC481
ORDER
1. The second appeals arise out of two suits filed by the same parties before the District Munsif, Sirkali. O.S.No. 371 of 1984 was filed on 20.11.1984 for a declaration that the sale deed dated 30.7.1984 was void and for a consequential injunction restraining the respondents herein from registering the same. O.S.No. 24 of 1985 was also filed for a declaration that the sale deed dated 30.7.1984 was void and for a consequential injunction restraining the respondent from registering the same. The first plaintiff in O.S.No. 371 of 1984 is the second plaintiff in O.S.No. 24 of 85. The first defendant in O.S.No. 371 of 1984 is the sole defendant in O.S.No. 371 of 1985. The Sub-Registrar is a party only in O.S.No. 371 of 1984. For the sake of convenience the parties will be referred to by their ranks in O.S.No. 371 of 1984. The first plaintiff is the mother of the second plaintiff. They ate respectively the widow and daughter of one Sultan Maraccair. According to them they became entitled to the properties in both the suits. They were mortgaged under Ex.B.4 to the first defendant's wife for Rs. 15,000 on 30.4.1975. Thereafter, under Ex.B.5 the same properties were usufructuraly mortgaged to the first defendant himself for Rs. 5000. He was put in possession and enjoyment pursuant to Ex.B5. The first defendant required the plaintiffs to repay the mortgage debt and the plaintiffs required six months time. As both the mortgages were prior to the Debt Reliefs Acts, the first defendant was apprehensive that the debts would attract the provisions of the Debt Reliefs Act. So he wanted fresh mortgages to the amount due under the mortgages to be executed and he represented that if the plaintiffs agreed to execute fresh deeds, he would not go to court. The plaintiffs agreed to the above course and the first defendant got two deeds executed by the plaintiffs. Immediately after execution the first defendant went on Haj Pilgrimage and therefore sale registration was hot done immediately, but was postponed. The plaintiffs got summons from the second defendant Sub Registrar on 10.11.1984 to appear on 22.11.1984 for registering the document of sale alleged to have been executed by them for Rs. 25,000. No sale deed was executed by the plaintiffs. It had been fraudulently prepared. The plaintiffs trusted the first defendant and without reading the document, signed the same. They were illiterates. The first defendant cannot even sign and the second plaintiff knows only to sign. It was under these circumstances O.S.No. 371 of 1984 came to be filed before the learned District Munsif, Sirkali. After the filing of the said suit on 5.1.1985 another notice was received from the District Registrar, Mayiladuthurai, asking the plaintiff to appear before him for an enquiry relating to a document in respect of a house property in Sirkali Town. As the plaintiffs accepted the signature and the thumb impressions, the District Registrar directed registration. This document was non-est. not valid and unenforceable. It was in these circumstances the second suit O.S.No. 24 of 1985 came to be file.
2. The suits were resisted by the first defendant on the following averments:
Sultan Maraccair was entitled to a 1/3 rd share in the suit property and the plaintiff became entitled to that 1/3 rd share. They got the properties under a heeba and they were in possession pursuant to the heeba and the plaintiffs indeed accompanied when the two mortgage deeds came to be executed. As they were stilt not out of the woods and were in strained circumstances, they offered to sell their 1/3rd share to the first defendant and after adjusting the amounts due under the mortgage, a sum of Rs. 1000 was due and the same was paid to the plaintiffs and they voluntarily executed the sale deed and the sale deed was duly attested by witnesses in a proper manner. At or about that time the first defendant had to undertake a pilgrimage to Haj and the plaintiffs told the first defendant that registration could be had after his return. Only on that assurance the first defendant went on the pilgrimage. However, after he returned from the pilgrimage the plaintiffs were dodging and therefore the document was presented for compulsory registration. The details about the sale were known to Abdul Hameed S/o Haneefa and Sambandam. Only after knowing the contents of the documents, the plaintiffs signed the same. The plaintiffs were not entitled to any relief.
3. The second defendant resisted the suit contending that under section 80 of the Code of Civil Procedure notice was mandatory and inasmuch as the same has not been given the suit was not maintainable. The plaintiffs could not file the suit against the second defendant. Only the state could be made as a party. The suit was liable to be dismissed.
4. Identical defence had been taken with regard to the second sale deed. Both the suits were dismissed by a common judgment on 4.1.1994 by the learned District Munsif, Sirkali. This was confirmed in appeals A.S.Nos. 53 of 1994 and 38 of 1994 by the learned Additional Subordinate Judge, Mayiladuthurai. Aggrieved, the present second appeals have been filed.
5. Second Appeal No. 91 of 1998 has been filed against A.S.No. 38 of 1994 and Second Appeal No. 92 of 1998 has been filed against A.S.No 53 of 1994. Notice of motion was ordered and after the respondents entered appearance, by consent the main second appeals were taken up.
6. Mr.S. Sounthar, learned Counsel for the appellants in both the appeals, submitted that the plaintiffs were pardhanishin ladies and the courts below had cast the onus wrongly on the plaintiffs and this was contrary to the well established legal position relating to the onus of proof where the parties were pardhanishin ladies. The learned Counsel in support of his submission relied on the following two decisions:
(1) K. Varadhan v. Pattammal (died) and four others, 1992 (2) L.W. 209 and (2) Chidambaram Pillai and 3 others v. Muthammal and another, 1993 (1) L.W.466.
7. On the basis of the above submission of the learned Counsel, the following substantial question of law arises for decision in both the second appeals:
Whether there was proper casting of burden of proof by the courts below?
8. Countering the arguments of the learned Counsel for the appellants Mr.S. Ramamurthy, learned Counsel for the first defendant, submitted that the courts below had not cast the burden of the plaintiffs. They had cast the burden only on the first defendant and this burden had been duly discharged by the first defendant. . The very trend of evidence of P.W.I, the second plaintiff, would show that she was a knowing person and it was not open to her to raise a plea that the plaintiffs were pardhanishin ladies and were entitled to gel the benefits of the ratio of the decisions already referred to.
9. Before going to the facts of the case, let us have a look at the authorities relating to the onus of proof in the case of pardhanishin ladies and illiterates.
10. In Mirja Sajjad Hussain and another v. Nawab Wazir Ali Khan and others, 23 MLJ 210 PC the Privy Council has observed as follows:
"According to the principles which have always guided the courts in dealing with sales or gifts made by ladies insuch a position (Pardhanishin ladies) the strongest and most satisfactory proof ought to be given by the person who claims under a sale or gift from them that the transaction was a real and bona fide one and fully understood by the lady whose property is dealt with."
11. In Mst. Kharbuja Kuer v. Jangbahadur Rai and others, the Supreme Court has this to say:
'As regards documents taken from pardhanishin women the courts has to ascertain that the party executing them has been a free agent and duly informed of what she was about. The reason for the rule is that the ordinary presumption that a person understands the document to which he has affixed his name does not apply in the case of a pardhanishin woman. The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardhanishin 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."
12. In Kanwarani Madna Vati and another v. Raghunath Singh and others, the Himachal Pradesh High Court stated as follows:
"Persons who based their case on the deed executed by any woman must show that the executant, although an illiterate woman, was capable of understanding what she was doing. .....that she had independent advice."
13. In K. Varadhan v. Pattammal (died) and four others, 1992 (2) L.W. 209 a Division Bench of this Court held as follows:
"Courts in India have on the rule of evidence enshrined in sections 101 and 102 in Chapter VII of the Evidence Act, particularly in cases of women in India who in some parts and some communities are pardhanishin and in most parts of the country illiterate, for the reason that they transact their business generally through malefolk only, men always dominated women, and women lived a life dominated by men, this being the curse that always surrounded women folk even though law recognised their independent rights, they failed invariably in exercising such rights, accepted that onus lies upon the defendant to show that there has been no fraud, undue influence or coercion in the transaction. One could easily, since the plaintiff alleged mis-representation and fraud, ask her to prove the same. But not in a case where she being an illiterate and unaware of the contents signed the document. Unless fully and faithfully informed about the contents, she cannot be asked to bring evidence to prove her case. ..... It was for the defendants to show that the plaintiff fully knew about the contents of the document of sale and that her story that she was made to believe that she was executing a deed of mortgage when she executed the document was not true."
14. In Chidambaram Pillai and 3 others v, Muthammal and another, 1993 (1) L.W. 466 Justice Mishra (as the learned Judge then was) sitting in Bench with Justice, Padmini Jesudurai analysed the law on the subject and reiterated the legal position as set out by the learned Judge in the earlier Bench sitting with Justice Swamidurai.
15. Bearing the above principles in mind if we examine the case on hand, it would be evident that the burden in the instant case has not been wrongly cast on the appellants. On the contrary, it had been rightly cast on the first respondent/1st defendant and the same has been properly discharged.
16. The courts below have analysed the entire evidence on record and come to the conclusion that the appellants knew about what they were doing when they executed the impugned documents and that they had been conducting several cases and in those cases they were being assisted by Haneefa Rowthar and Sambanda Thevar. Interestingly Haneefa Rowthar and Sambanda Thevar are the attestors to the two documents, It is spoken to by the witnesses on the side of the first respondent that the drafts of the documents were read out to the appellants in the presence of Haneefa Rowthar and Sambanda Thevar and. accepting the contents of the documents the first plaintiff affixed her thumb impression and the second plaintiff put her signature. The courts below have also observed that the plaintiffs knew about the difference between a sale and a mortgage. Absolutely no motive had been attributed to the witnesses examined on the side of the first defendant and factually it has been found by the courts below that the documents were signed, read out and executed by the plaintiffs in the presence of Haneefa Rowthar and Sambanda Thevar without compulsion and with full knowledge of the contents. The second plaintiff as P.W.1 has also admitted that the plaintiffs were being assisted by Sambanda Thevar and Haneefa Rowthar in, all affairs and they trusted those people and they would not depose against the plaintiffs. Vital admissions were elicited from P.W.I about how Sambanda Thevar was close to her husband and there was a court case between her husband and the first respondent and it was settled with the assistance of Haneefa Rowthar and Sambanda Thevar, that there was some court case between her and one Chinnathambi and in that case Haneefa and Sambanda Thevar were conducting the proceedings on her behalf and any difficult problem relating to her would be solved by her through the good offices of Haneefa and Sambanda Thevar. The courts below have also observed that the appellants had not chosen to examine Haneefa and Sambanda Thevar particularly when they were aware of the fact that Sambanda Thevar and Haneefa were stated to have attested the impugned documents.
17. Consequently, it has to be held that the appellants/plaintiffs had independent advice and the first respondent/first defendant had clearly established that they knew about the contents of the documents and their story that they were made to believe that they were executing only deeds of mortgage when they executed the impugned documents, was not true. They had been fully and faithfully informed about the contents in the presence of their trusted lieutenants. I have, therefore, no hesitation in holding that the transactions were real and bona flde and the same would not be impugned.
18. In K.M. Madhavakrishnan v. S.K. Sami and others, 1980 (II) MLJ 398 it has been held by a Bench of this Court as follows:
"The general rule of law is that a party of full age and understanding is normally bound by his signature to a document whether he reads it or understands it or not. Equity does not save people from the consequences of their own folly but will save them from being victimised by other people. If a party has been misled in executing a deed or signing a document essentially different from that which he intended to execute or sign, he can plead non est factum in an action against him and the deed or writing is completely void in whomsoever hands it may come. The doctrine of non est factum does not apply unless there is a misrepresentation inducing a mistaken belief as to the class or character of the supposed document and not a mis- representation simply as to its contents. On the other hand, a mistake as to the contents of a deed or document is not sufficient."
19. As already noticed, the first defendant/first respondent had discharged the onus cast on him folly to the satisfaction of the court and it has to be held that they are not entitled to any relief. The substantial question of law raised for decision is answered against the appellants and both the second appeals are dismissed. The civil miscellaneous petitions C.M.P.Nos. 993 and 994 of 1998 are also dismissed. There will be no order as to costs.