Madras High Court
Chidambaram Pillai And Ors. vs Muthammal And Ors. on 16 October, 1992
Equivalent citations: (1993)1MLJ535
JUDGMENT Mishra, J.
1. Thirumalai Vadivu Ammal filed a suit in the Sub Court, Tirunelveli in O.S. No. 447 of 1979 to set aside a registered deed of settlement dated 23.1.1975 which she herself had executed in favour of her brother's daughter, the 1st defendant in the suit. The 2nd defendant, 2nd respondent is the husband of the 1st defendant, 1st respondent. She sought cancellation of the said deed on the ground that the respondents misrepresented that she was executing only a power of attorney for collecting the arrears of rent from the tenants. According to her, thus, the respondents exercised undue influence and fraudulently got the said document executed on the above misrepresentation.
2. The defendants/respondents denied the plea of misrepresentation, undue influence and fraud, denied that there were any arrears due from the tenants and stated that there was no necessity to execute a power deed. They came out with a positive case that the 1st defendant/1st respondent was brought up by the plaintiff, that the plaintiff gave her in marriage to the 2nd defendant/2nd respondent and met the marriage expenses. She, according to the defendants/respondents, executed the settlement deed knowing fully that she was transferring her interest in the property to her brother's daughter i.e., to say, 1st defendant/1st respondent, V has since died. Her heirs and legal representatives are on record as per order of Court dated 15.4.1987 in C.M.P. 14184 of 1987 in A.S.231 of 1981.
3. The trial Court held that there was no misrepresentation, fraud or undue influence in the execution of deed of settlement as alleged by the plaintiff. A learned single Judge of this Court has affirmed the judgment of the Trial Court. He has taken up the plea of undue influence and fraud separately and said in respect of undue influence that there was no such allegation in the suit notice and that the necessary ingredients of undue influence have not been pleaded at all and in respect of misrepresentation or fraud that he did not think that there was anything in the case which would make him to come to a different conclusion from that of the Trial Court.
4. Before we proceed further, we may recapitulate that in the plaint, it was stated by the plaintiff that her husband died on 16.11.1973 without any issue and without any will. She was very old, but possessed nanja land, which was leased to one A., who did not pay to her the lease of two crops (rent in kind). She felt that she needed a male or female helper to collect paddy from the lessee and to look after her other affairs. She had no other relative except her brother who was not in good terms with her and "the 1st defendant, the daughter of her brother who had no connection with her father, was close to her (the plaintiff) from 1974-75 onwards and helping her." The defendants told her to give a registered power of attorney to collect the arrears of paddy from A. She suspected nothing foul and agreed to execute the power of attorney. The plaint also contains a statement that the 2nd defendant took her signature in the document which was made ready. The contents of the document were not read over to her. The 2nd defendant/respondent took her to the office of the Sub Registrar and instructed her that she needed to talk to none and say before the Sub Registrar that she had no heir other than the 1st defendant. The plaintiff, it is said in the plaint, then put her thumb impression in the presence of the Sub Registrar. The Sub Registrar did not ask anything from her. She did not purchase any stamp paper or pay any money for the registration charges. The 2nd defendant undertook to get the said document from the Sub Registrar's office and the plaintiff believed the same. Two years after the registration of the said document, i.e., sometime in January, 1977, the defendants came and lived with the plaintiff. Even at that time, the plaintiff did not suspect the defendants. The plaintiff informed the lessee, A. that she had executed a power of attorney in favour of the defendants and that the leasehold paddy in question could be given to the defendants in future. The defendants stayed with the plaintiff for about 6 1/2 months. The plaintiff did not suspect anything at that time. Later on, the defendants went and lived in some other house. Subsequently the defendants stopped visiting the plaintiff. The plaintiff came to know that the defendants did not collect the lease paddy from the said A. and they did not supervise the land in question. She for the said reason went and asked the defendants to hand over the power of attorney stating that she would collect the lease paddy directly. The defendants refused to give the same and informed that she had executed a settlement deed in their favour on 23.1.1975 and that they had got the power to drive her out of the house. Thereafter, according to the plaintiff, she with the help of one M. got a copy of the document and came to know that the plaintiffs had played a fraud on her. Both the trial Court as well as the learned single Judge have entered into the question whether the settlement deed executed by the plaintiff was vitiated due to fraud and undue influence by placing reliance upon a judgment of this Court in the case of Madhavakrishnan v. Sami . wherein it is laid down 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.
Whenever a person of full age and understanding puts his signatures to a legal document without taking the trouble of reading it or without asking the document to be read and explained to him but signs it relying on the word of another as to its character, content or effect, he cannot be heard to say that it is not his document.
It is settled law that a vague and general plea of undue influence will not be sufficient when the plaintiff comes forward with an action to set aside a contract on that ground or for fraud. It is the duty of the Court to scrutinise the pleadings to find out that a plea has been made and full particulars thereof have been given before considering whether undue influence has been made out or not.
This statement of the general rule of law however has got several exceptions and it is said to record that such exceptions were not brought to the notice of either the Trial Court or the Court of Appeal below. A rule of non est factum which in full reads non est factum, scriptum, predictum non est factum sum has existed as a rule of law in England as well as in India and there has been a good deal of improvement in this behalf, while applying the rule of burden of proof in evidence to Women in India. While affirming a judgment by Mohan, J., in K. Varadhan v. Pattammal (1992)2 L.W. 209, a Division Bench of this Court of which one of us was a member, has stated 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 pardanashin and in most parts of the country illiterate for the reason that they transact their business generally through male-folk only, men always dominated women and women lived a life dominated by men, this being the curse that always surrounded womenfolk even though law recognised their independent rights, accepted that onus lies upon the defendants to show that there has been no fraud, undue influence or coercion in the transaction. One could easily, since the plaintiff alleged misrepresentation and fraud, ask her to prove the misrepresentation and fraud. 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. Learned single Judge, in our opinion, is right in holding that the Court will not ask the plaintiff to prove the allegation, but demand from the defendant to disprove the allegation of misrepresentation and fraud. The learned single Judge, in our opinion, has taken the correct view of the law on the face that the 1st plaintiff is an illiterate women who merely affixed her thumb impression. She is a women who possibly could not act without help.
We would have faithfully followed the above principle and interfered with the impugned judgment on the sole ground that the courts below have not taken notice of this exception, but for the reason that even though we find that a serious error of law has been committed in not taking notice of the rule of burden of proof that is invariably applied by the Courts in India in the cases of ignorant and illiterate women, since there is a little misapprehension for the reason of the use of the expression, "onus lies on the defendant to show that there has been no fraud, undue influence or coercion in the transaction," in the above judgment we decided to give a full length hearing to ail the parties to state the law in full in this behalf.
5. In the case of Madhavakrishnan v. Sami , a reference has been made to the doctrine of non est factum also. But this has been explained after a statement of the general rule of law 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. Because, equity does not save people from the consequence of their own folly but will save them from being vitimised by other people. The learned Judge who has delivered the judgment in the Court has stated:
...Sir Raymond Evershed, M.R. has observed in Tufton v. Sperm, as follows:
Extravagant liberality and immoderate folly do not of themselves provide a passport to equitable relief.
But if, however, 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. As Byles, J., said in Foster v. Mackinnon:
It is invalid not merely, on the ground of fraud, where fraud exists, but on the ground that the mind of the sign or did not accompany the signature; in other words, that he never intended to sign, and therefore, in contemplation of law never did sign the contract to which his name is appended".
"The doctrine of non est factum does not apply unless there is a misrepresentation in inducing a mistaken belief as to the class of character of the supposed document and not a misrepresentation simply as to its contents. On the other hand, a mistake as to the contents of a deed of document is not sufficient.
In a recent case in Saunders v. Anglia Building Society, the House of Lords had to consider the scope of the doctrine of non est factum in the following circumstances. G, a widow aged 78, who had a leasehold interest in a house, gave the deeds to her trusted nephew, intending to make a gift to him to take effect immediately. She knew that her nephew wished to raise money on the house and that L, her nephew's business associate was to collaborate with the nephew in raising money on the house. In June, 1962, L, asked her to sign a document. She had broken her spectacles and could not read it. She asked what it was and L. told her that it was a deed of gift of the house of her nephew. She..."executed it in that belief, and the nephew witnessed the execution, it being part of his arrangement with L., that L. should raise money on the house and repay it to the nephew by instalments. The document signed was in fact an assignment of the house by her to L. for Pound 3,000. The 3,000 pounds was never paid nor intended to be paid to her. L. having obtained the deed and a reference as to his reliability from the nephew, mortgaged the house for 2,000 pounds to a building Society, but used the money so raised to pay his debts and defaulted on the mortgage instalments. The building society sought to obtain possession of the house, G., at the nephew's instigation began an action, in which she pleaded non est factum, against L., and the building society and asked for a declaration that the assignment was void and that the title deeds should be delivered to her. The trial Judge found that G., did not read the document, that L., represented it to her as a deed of gift to the nephew; that she executed it in that belief; and that a sale or gift to L., was something which she did not and would not ever have contemplated; and he held that the plea of..."non est factum was established and granted the declaration asked for. The Court of Appeal reversed the decision. An appeal to the House of Lords the following propositions were laid down : (1) The plea of non est factum can only rarely be established by a person of full capacity; and, although it is not confined to blind or illiterate persons, any extension in the scope of the plea will be kept within narrow limits. (2) The burden of establishing the plea falls on the signatory seeking to disown the documents; and he must show that, in signing the document he acted with reasonable care. Carelessness which would preclude him from pleading non est factum is based on the principle that no man can take advantage of his own wrong and is not an instance of negligence operating by way of estoppel. (3) In relation to the extent and nature of the mistake relied upon to set up the plea, the distinction formerly drawn between the character and class and the contents of a document is unsatisfactory. For the plea to succeed, it is essential to show that there is as regards the transaction a radical or "fundamental distinction between what the person seeking to set up the plea actually signed and what he thought was signing. The decision of the House of Lords in this case is particularly significant in so far as it has held that a person who signs a document may not be permitted to raise the defence of non est factum where he has been guilty of carelessness in appending his signature. It was formerly held in Carlisle and Cumberland Banking Co. v. Bragg, and other cases that negligence was only material where the document actually signed was a negotiable instrument, for there was not otherwise any duty of care owned by the person executing the document to an innocent third party who acted in reliance on it. The House of Lords in Sounders v. Anglia Building Society, has overruled Carlisle and Cumberland Banking Co. v. Bragg, and has held that no matter what class of document would exclude the defence of "non est factum."
Akin to the doctrine of non est factum, Indian courts as well as the Privy Council evovled the doctrine as to burden of proof in cases of the documents executed by a class of women in India who were identified as Pardanashin Ladies. This has been best stated in a judgment by the Privy Council in the case of Farid-Un-Nisa v. Mukhtar Ahmad 52 I.A. 342 : A.I.R. 1925 P.C. 204. : 49 M.L.J. 758 : 89 I.C. 649 : 1925 M.W.N. 918, which has been extracted by the Supreme Court in its judgment in the case of Mst. Kharbuja Kuer v. Jangbahadur Rai and Ors. . Lord Summer traced the origin of the custom and stated the Principle in these words:
In this it has only given the special development, which Indian social usages make necessary, to the general rules of English law, which protect persons, whose disabilities make them dependent upon or subject them to the influence of others, even though nothing in the nature of deception or coercion may have occurred. This is part of the law relating to personal capacity to make binding transfers or settlements of property of any kind.
The learned Lord has also pointed out:
Of course fraud, duress and actual undue influence are separate matters.
The Supreme Court has, in Mst. Kharbuja Kuer v. Jangbahadur Rai and Ors. , observed:
It is therefore, manifest that the rule evolved for the protection of pardanashin ladies shall not be confused with other doctrines, such as "fraud, duress and actual undue influence, which apply to all persons whether they be pardanashin ladies or not.
There has been, however, some confusion in the Courts as to who a Pardanashin lady, is and even if she is identified as a Pardanashin lady, what is the scope and extent of the protection of this rule.
6. A Lahore Bench, in the case of Fayyarud-Din v. Kutab-ud-Din A.I.R. 1939 Lah. 309, declared that a woman belonging to a family of barbers, keeping a hamam in the town of Delhi, whose females did not live in a state of seculsion is not pardanashin, for, it thought that a pardanashin is a 'woman of rank' who lives in seclusion, shut, in the "Zenana" having "no communication except from behind the parda, or screen with any male persons save a few privileged relations or dependants". The Lahore Bench was not alone in holding this view, for, in its Judgment, it relied on what it thought was stated by the Privy Council in the case of Buzloor Raheem v. Shumsoonnissa Begum 8 W.R. 3. In the words of Tak Chand J, who delivered the Judgment, "as pointed out in the leading case of Buzloor Raheem v. Shumsoonnissa Begum 8 W.R. 3, a pardanashin is a 'woman of rank' who lives in seclusion, shut in the 'zenana' having "no communication...."
except from behind the parda, or screen with any male persons save a few privileged relations of dependants; see also Nanavati v. Digbijai Singh and Sajjad Hussain v. Wazir Ali Khan 39 LA. 156 and the exhaustive review of the case law on the subject by Mukerjee. J, in Mirian Bibi v. Mohammed Ibrahim, Chandra Ghose v. Kali Dasi. This description does not obviously apply to a woman belonging to a family of barbers, keeping a hamam in the town of Delhi, whose females do not live in a state of seclusion.
There are, however, many stages of development of law on the subject, and it will not be futile if the consensus of Judicial opinion is taken out for the purpose of understanding the meaning of the expression 'Pardanashin lady' and the scope and extent of this special provision for them. But, skipping over a plethora of decisions on this subject, if we refer to a Bench decision of the Calcutta High Court in Smt. Sonia Parshini v. Sheikh Moula Baksha and the Judgments of the courts thereafter, we shall not be losing much, rather we shall be saved of the repetition of what has been already done by the Courts.
7. In the Calcutta case Smt. Sonia Parshini v. Sheikh Moula Baksha , as they have stated in the judgment, 'the real question between the parties was whether the plaintiff appellant was entitled to any kind of protection under the law by reason of the helplessness of her state on account of illiteracy and ignorance and secondly if she was so entitled what corresponding burden was cast on the respondent who dealt with her'.
8. Debabrata Mukerjee, J., speaking for the Court, has said:
...The issues framed in the case raised in substance these questions though they appear to have been raised in a somewhat confused manner. The rule of law governing, transactions entered into by a pardanashin woman properly so-called is in no unsettled state. It has been the subject of judicial pronouncements of the highest eminence and authority. Such a woman has been held to be entitled to protection because of the disabilities peculiar to the class to which she belongs which make her dependent upon or subject to the will of others.
In the case of Kali Baksh Singh v. Ram Gopal Singh 41 LA. 23. (P. C.) (A), Lord Shaw in delivering the judgment of the Judicial Committee observed:
The law throws around her a special cloak of protection. It demands that...the burden of proof shall in such case rest not with those who attack, but with those who found upon the deed, and the proof must go so far as to show affirmatively and conclusively that the deed was not only executed by but was explained to and was really understood by the grantor. In such cases, it must also, of course, be established that the deed was not signed under duress but arose from the free and independent will of the grantor.
These observations were in essence an extension of the principle affirmed in an earlier decision of the Board in the case of Sajjad Hussain v. Waziz Ali Khan 39 LA. 156 (P.C.) (B), that it rested upon those founding upon a deed executed by a pardanashin woman to affirmatively establish that she understood its effect and the deed was intelligently and properly executed by her. After the above, the Calcutta judgment proceeds:
The substantial question here is whether in the facts and circumstances proved by the plaintiff appellant could be held to be entitled to this protection. This would require examination of the reasons behind the rule protecting transactions in which pardanashin women are concerned. The inhibitions imposed by Social conditions upon women of a certain well-defined class bring in their train disabilities which have compelled reversal of the rule that ordinarily a person is to be held to his contract. These disabilities are due largely to illiteracy and ignorance which superadded to restrictions on free movement and contract with the world outside induce a condition of helplessness requiring the utmost vigilance to prevent unfairness in a deal in which she is concerned. The parties to the transaction not being evenly placed, courts called upon to pronounce on such transactions have always jealously guarded against possible unfairness. It has therefore come to be recognised as a rule of law that a party founding on a deed executed in such circumstances has to establish intelligent understanding of the deed and the burden is not discharged by mere proof of the execution of the document. Question of fraud or undue influence apart, the plain requirement of the law in such cases is clear proof of comprehension of the contents of the document executed by her.
Such protection cannot plainly be the exclusive privilege of the class commonly known as pardanashin. The parda with its inhibitions may be an additional feature or element in the case but the real reason behind the rule is lack of understanding and appreciation of what an illiterate woman without independent advice, is about. Where ignorance and illiteracy are proved exposing the woman concerned to the danger and the risk of an unfair deal it would, we think, be a perversion of the rule to deny in such case the protection, despite the helplessness of her state, merely on the ground that she is not strictly pardanashin. It is quite conceivable that a woman belonging to the pardanashin class properly so-called may be in spile of the restraints of the parda have sufficient under-standing and appreciation of the contents of a document to which she is a party. In such case there can be no question of the protective cloak being thrown around her and she cannot be heard to plead her pardah in avoidance or the transaction. The criterion cannot be the social status implied in the pardah class but the ability to comprehend the contents of the document in question and the means or opportunities of such comprehension. The emphasis must be on the factual understanding of the document with reference to the individual concerned and not upon presumptive disability incidental to mere status.
9. The Calcutta Court, for the above, found support in the observations of the Judicial Committee in the case of Hodges v. Delhi and London Bank Limited 27 I.A. 168(P.C), that indicated the cases of women who were outside the well known class of pardanashin women. The observation of the Judicial Committee in this behalf is as follows:
It must depend in such case on the character and position of the individual women whether those who deal with her are or are not bound to take special precautions that her action shall be intelligent and voluntary and to prove that it was so in case of dispute.
Mainly on this, the Calcutta Court has said:
It would therefore be wrong to suppose that a women outside the parda class is not entitled to the protection despite the disability of illiteracy and ignorance and absence of independent advice where her pardanashin counterpart is readily admitted to it.
10. In the case of Smt. Patal Bala Debi v. Santimoy Majumdar , once again the case of anilliterate woman executing a deed under the impression that she was executing a deed authorising her distant nephew to manage her lands, but, in reality a deed of gift, came up for consideration. The appellant relied upon the judgment of the Calcutta Court in the case of Smt. Sonia Parshini v. Sheikh Moula Baksha and urged that even though the appellant was not a Pardanashin strictly speaking, she was an illiterate woman and since she had questioned the validity of the deed, the privileges and. protection given to a Pardanashin woman should have been extended to her and the party relying upon the deed should have been asked to prove that her action was intelligent and voluntary. The Court held on facts that the appellant was an illiterate woman for all practical purposes and thereafter notified the opposite arguments in these words:
Mr. Lala appearing on behalf of the respondent 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 Limited 27 I.A. 168 (P.C.) and he submitted that if the decision reported in Smt. Sonia Parshini v. Sheikh Moula Baksha (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 women, then it must be held that that decision has some measure of conflict with the Privy Council case reported in Hodges v. Delhi and London Bank Limited 27 I.A. 168 (PC.).
The Court, however, did not proceed to examine the worth of this argument, for in its opinion:
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.
The variation in the judgment of the Calcutta Court in the case of Smt. Sonia Parshini v. Sheikh Moula Baksha . which was to some extent questioned in the case of Bala Debi v. Santimoy , but not answered, has received, in our opinion; an adequate explanation by a Bench of the Himachal Pradesh High Court in the case of Kanwarani Madna Vati v. Raghunath Singh The Himachal Pradesh High Court considered the case of a woman who never pleaded that she was a Pardanashin lady but raised the plea that she was an illiterate woman. She had pleaded that she remained almost constantly sick and her mind had been enfeebled by physical and mental distress. She had also stated that she had none to look after or advice her. Her two brothers were addicts to intoxicants. The Court upon that said:
On these facts it cannot be presumed that she was a Pardanashin lady. If the appellant had raised that plea in the pleadings the respondents would have had an opportunity to challenge the same and evidence could have been produced not only in support of the allegation but it could have been shown also that even if she was outside that class the circumstances were such that a person dealing with her was bound to take special precautions and to prove that she had done so. See: Bank of Khulna Limited v. Jyoti Prakash Mitra A.I.R. 1940 P.C. 147.
The court thereafter noticed the argument that the protection given to a Pardanashin lady can also be extended to other women of that class and observed as follows:
The learned Counsel contends that this protection which is given to Pardanashin ladies can also be extended to other women of that class and for this he placed reliance on Smt. Sonia Parshini v. Sheikh Moula Baksha . It has been stated in this authority that the protection given by the rule relating to Pardanashin women cannot plainly be the exclusive privilege of the class commonly known as Pardanashin. The Parda with its inhibitions may be an additional feature or element in the case but the real reason behind the rule is lack of understanding and appreciation of what an illiterate woman without independent advice, is about. Where ignorance and illiteracy are proved exposing the woman concerned to the danger and the risk of an unfair deal, it would be a perversion of the rule to deny protection in such case, despite the helplessness of her state, merely on the ground that she is not strictly Pardanashin. The emphasis must be on the factual understanding of the document with reference to the individual concerned and not upon presumptive disability incidental to mere status. Therefore, what follows from this authority is that the persons who base 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. Mere ignorance or illiteracy will not be sufficient, but it must be shown that she was fully aware or understood what she was going to do.
After taking notice of the evidence in the case, the Himachal Pradesh High Court observed:
Therefore, the only thing the Court has to see is whether a lady although not a Pardanashin, had the capacity, when executing a document, of knowing what she was doing without any advice from any quarter....
11. The Allahabad High Court has ruled in several cases on the same lines and in the case of Parasnath Rai v. Tileshra Khauar 1965 All L.J. 1080, the law is staled in these words:
Rules regarding transactions by Pardanashin lady are equally applicable to an illiterate and ignorant woman though she may not be a pardanashin. It is not by reason of the Pardah itself that the law throws its protection round a Pardanashin lady but by reason of those disabilities which a life of seclusion lived by a Pardanashin lady gives rise to, and which are consequently presumed to exist in the case of such a lady. But the disabilities which make the protection necessary may arise from other causes as well as old age, infirmity, ignorance, illiteracy, ailing mental deficieney, inexperience and dependence upon others may by themselves create disabilities that may render the protection equally necessary. It is, therefore, proved that a woman, who is not a Pardanashin lady, suffers from disabilities to which a Pardanashin lady is presumed to be subject, the validity and the binding nature of a deed executed by her have to be judged in the light of those very principles which are applied to a deed by a Pardanashin lady.
The Allahabad High Court reiterated the above view in another judgment in Manoharlal v. Rajeswari Devi , and a learned single Judge of that High Court stated thus:
The rule regarding transaction by Pardanashin lady apply equally to illiterate widow though she may not be in strict sense a pardanashin lady.
12. A Bench of the Orissa High Court in Bhikary Ram v. S. Hedait Mohammed Sahaji and Anr. , has taken notice of the fact of the case that the woman who was alleged to have executed a document was an illiterate for all practical purposes except that she knew to sign her name in Oriya and stated the law in these words:
The law dealing with alienation made by illiterate Pardanashin ladies is too well known and need not be described at length. There are several decisions of the Privy Council, on the subject which have been summarised by Rowland, J. In Sadhabi Debi v. Parmananda Misra 4 Cut.L.T. 6, as follows:
In the case of a deed executed by a pardanashin lady the law protects her by demanding that the burden of proof shall in such cases rest not with those who attack, but with those who rely on the deed; and it must be proved affirmatively and conclusively that the deed was not only executed by, but was explained to and really understood by, the grantor. Ordinarily the Courts insist on proof that the lady had independent legal advice, and though this is not an absolute and invariable rule although there may be exceptions where the lady was shown to have business capacity and strength of will and where the deed is shown to be in the circumstances not an unnatural disposition of her property as in Kali Baksh Singh v. Ram Gopal Singh 41 I.A. 23 (P.C.), the general rule is that save in such exceptional cases the courts will demand affirmative proof of the subject of the lady's intelligent understanding and execution of a deed and will not readily hold this onus to have been discharged where it is not shown that the lady had any independent advice."
"Thus burden is therefore heavily on the plaintiffs to establish affirmatively (1) that the mortgage bond was explained to and really understood by defendant No. 3 and (2) that defendant No. 3 had independent advice or else that she had so much business capacity and strength of will as to dispense with the necessity of independent advice.
13. In Brundaban Misra v. Iswar Swain A.I.R. 1982 Ori. 172, a learned single Judge of the Orissa High Court has referred to the judgment of the Supreme Court in the case of Mst. Kharbuja Kuer v. Kangbahodur Rai and Ors. , and that of the Patna High Court in the case of Satyadeo Prasad v. Smt. Chanderjoti Debi , and has stated the law on the subject in these words:
As regards execution of documents by Pardanashin Ladies, in Mst. Kharbuja Kuer v. Jangbahadur Rai and Ors. ., it was held:
...The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardanashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was not only 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.
In Satyadeo Prasad v. Smt. Chanderjoti Devi , it was held:
...It is the well-established principle of law that those who want to take advantage of a document executed by a pardanashin lady must prove that she knew its contents and executed it with full knowledge of its effects and consequences, and that she had independent advice in the matter. In such a case the burden is always, in the first instance, on the person founding on that document to show that the grantor intelligently understood the deed, and if they fail to establish that point, when the document is not binding on the executant or anyone else and is void ab initio....
And decided:
Also I respectfully agree with the view expressed in Agadei Mahkani v. Abhimanyu Mallik (1968)34 Cut. L.T. 874, that the principles which govern proof of execution of documents taken from Pardanashin women are equally applicable to documents taken from illiterate Women.
14. It is not necessary to add many more Authorities, but we think we may take notice of a pronouncement of the Judicial Committee of the Privy Council in the case of Mirja Sajjid Hussain v. Nawab Wazir Ali Khan 23M.L.J. 210. In that case, one Madad Ali had appointed by a deed of endowment, one Mehadi Begam as a co-trustee with another, of a wakf. After the death of her co-trustee, she continued to manage the property alone. Later, she executed a document whereby she intended to add to the endowment, and she appointed certain persons as Trustees besides herself. The Privy Council noticed the facts as follows:
Mehadi Begam was a pardanashin woman, she was separated from her husband, she was unable to read or write, and she was possessed, at the date of the deed which is questioned, of a fortune of about Rs. 50,000. It is not disputed that in the ordinary case of a deed granted by a pardanashin lady, it rests upon those founding upon the document to establish that she understood its effect and that the deed was intelligently and properly executed by her.
After the above, the Privy Council in this judgment said:
The document may be described shortly as an intervivous conveyance, taking effect de presenti and stripping the lady of all her possessions, except to the extent of the reservation made to herself of her pension of Rs. 40 per month. It appears to their Lordships that the deed accordingly is of a character justifying a strict and careful application of the rule operating for the protection of pardanashin women and demanding affirmative proof on the subject of their intelligent understanding and execution of deeds attributive to them. This view is strengthened by the marked contrast which exists between this document of 1902 and the previous deed of endowment of 1898, which was limited in its scope, was purely testamentary, and expressly reserved power of management of all the affairs of the endowed property to the lady herself, with power of amending and cancelling the endowment." "According to the principles which have always guided the courts in dealing with sales or gifts made by ladies in such a position (pardanashin 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.
This is the language of Sir Montagu Smith in Tacoordeen Jewerry v. Nawab Syed Ali Hussain Khan and is still the law. In the words of Sir Andrew Scoble in Shambati Koeri v. Jogo Bibi:
It is a well-known rule of the Committee that in the case of deeds and powers executed by Pardanashin ladies, it is requisite that those who rely upon them should satisfy the court that they have been explained to and understood by those who executed them.
15. A section of women folk in view of the social conditions of the times are presumed to have imperfect knowledge of the world, as the Supreme Court has said in the case of Mst. Kharbuja Kuer (supra). They are presumed to have imperfect knowledge of the world, as, by the pardah system, they are practically excluded from social intercourse and communion with the outside world. The origin is traced to the Indian Social usage sand the general rules of English Law, which protect persons whose disabilities make them dependent upon or subject them to the influence of others even though nothing in the nature of deception or coercion may have occurred, are made applicable to such section of women. In the words of Lord Summer, which have been quoted with approval by the Supreme Court in the case of Mst. Kharbuja Kuer (supra),:
This is part of the law relating to personal capacity to make binding transfers or settlements of property of any kind.
It is this imperfection of the knowledge of the world that the law throws round such women a special cloak of protection which demands that the burden of proof shall in such a case rest, not with those who attack, but with those who found upon the deed, and the proof must go so far as to show affirmatively and conclusively that the deed was not only executed by, but was explained to, and was really understood by the grantor. In such case, it must also, of course, be established that the deed was not signed under duress, but arose from the free and independent will of the grantor. That is what the Privy Council said first in its judgment in the case of Farid-un-Nisa v. Mukhtar Ahmad A.I.R. 1925 P.C. 204, and in the case of Hemchandra v. Sumdhani Debya A.I.R. 1940 P.C. 134, and summed up by the Supreme Court in the case of Ms. Kharbuja Kuer (supra), in the following words:
Shortly it may be stated thus; The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a Pardahnashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was not only 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.
16. The pardah system as understood by the Courts in India is not the system of keeping a woman under a veil indoors in zenana, but in seclusion, away from the knowledge of the world, in the sense that they are not ordinarily allowed to interact with the malefolk and are kept away from social intercourse and communion with the outside world. The view of the Lahore Court in the case of Farid-ud-din, A.I.R. 1939 Lah. 309, had almost worked as an alarm for the courts to develop a sense that any strict meaning to pardah was going to exclude a greatly deprived section of the society from the protection cloak of the law, namely, the illiterate women and other women having such infirmities that they practically live without any social intercourse and communion with the outside world. The Judicial consensus, as we have already noticed, has been expressed thus:
The rules regarding transaction by the Pardanashin apply equally to illiterate women though they may not be in a strict sense Pardanashin.
A Pardanashin may not be illiterate, but she still may be ignorant in the sense that she has an imperfect knowledge of the world, and she is practically excluded from social intercourse and communion with the outside world. Her ignorance is the course of a social usage that womenfolk depend upon malefolk for transaction of their business with the outside world. Thus, not all women, but only those who are practically excluded from social intercourse and communion with the outside world fall in this category. If it is for this reason that they are taken as persons suffering from disabilities which make them dependent upon or subject to the influence of others, the illiterate women who, for the reason of social compulsion are required to move out to work in the fields and elsewhere for livelihood, cannot be said to be less disabled and deprived. Even if they are intelligent to know where to go and how to earn their livelihood, yet they cannot read anything nor write anything, and unless told about the contents by others, will not know what the document contains. To the extent the character, content and the effect of the document are concerned, she has to be presumed to be ignorant by sheer illiteracy, the curse which is still pervading the ancient society, particularly the women living in this part of the country, a fact about which, we think, we are competent to take judicial notice. We find ourselves in complete agreement with the view that the special cloak of protection applied to Pardanashin women has to be applied to illiterate women as well.
17. When we have said as above, we should not be understood to say that in a given case, a male cannot be protected by such a rule. In Omanhene Kwamin Bassavin v. Omanhene Bendemu A.I.R. 1937 P.C. 274 : 170 I.C. 423, the Privy Council applied such a rule of burden of proof upon the defendant in the case of a person who was illiterate and who pleaded that the contents of the document were not read over and explained to him. A learned Judge of this Court in Ramaswam Jadaya Gounder v. V.T. Elaiya Pillai , has dealt with a case of a person who knew to sign his name, but said, he had no knowledge of the contents of the document to which his signatures were taken, and he was not informed of the contents of the documents as the documents were not read over or explained to him. The learned Judge has said:
In this case, the plea of the plaintiff is that he is illiterate and that apart from putting his signature he does not know how to read or write. In the circumstances, the burden is on the plaintiff to prove that the defendant had executed the document.
It is possible to say that the special protection cloak, as the Courts have described this rule, is a modification of the rule of non est factum property women and wherever needed chiselled to suit the Indian conditions. Since, in the instant case, we are concerned with a woman who is an illiterate, we are in no need to say anything further. We have seen that on occasions courts have used the word 'onus' in lieu of 'burden', and in certain circumstances, it is made to appear as if the courts treated this rule of burden of proof only as a rule of onus of proof. This impression one gets only when he views the Authorities superficially. The distinction in this behalf we shall indicate a bit later, Before doing so we propose to clear ourselves through the language of Section 16 of the Indian Contract Act which particularly deals with the requirement of evidence and the onus in a case in which undue influence is alleged. Section 16 of the Contract Act reads as follows:
16.(1) A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses the position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another-
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other. Nothing in this sub-section shall affect the provisions of See l11 of the Indian Evidence Act, 1872.
It can be seen from the language of this section of the Contract Act that the court has to ask the person who has founded his claim upon a document to prove that the grant was not obtained by undue influence only when the initial onus is discharged by the person who alleges undue influence, and that there has been such relations existing between the parties that one of the parties was in a position to dominate the will of the other and could use the position to obtain an unfair advantage.
18. We have a plethora of decisions dealing with this aspect of the law that court must scrutinise pleadings to find out that a plea of undue influence has been made out and that full particulars thereof have been given before examining whether undue influence was exercised or not and that the court trying a case of undue influence must consider two things to start with, viz., (i) are the relations between the donor and donee such that the donee is in a position to dominate the will of the donor, and (ii) has the donee used that position to obtain an unfair advantage over the donor. Upon the determination of these issues, a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then, the burden of proof that the contract was not induced by undue influence, is to lie upon the person, who was in a position to dominate the will of the other. We can pick up from the lot some land marked judgments as are in Ladi Prasad Jaiswal v. Kamal Distillery Company Limited and Subbhos Chandra v. Ganga Prasad . In this context, one must note that a vague and general plea can never serve the purpose and satisfy the requirements of pleadings as to undue influence, for which purpose, the party pleading must plead the precise nature of the influence exercised, the manner of the use of the influence and unfair advantage obtained by the other. Certain observations in this behalf found in Halsbury's Laws of England, Third Edition, Volume 17, page 673 Article 1298, have been cited in the judgment of the Supreme Court in the case of Subbhas Chandra v. Ganga Prasad , which reads, where there is no relationship is shown to exist from which undue influence is presumed, that influence must be proved.
and Article 1299, at page 674, There is no presumption of imposition or fraud merely because a donor is old or of weak character.
The Supreme Court has also noted what is stated at pages 678 to 681 and particularly pointed out notes on page 679 which say, There is no presumption of undue influence in the case of a gift to a son, grandson or son-in-law, although made during the donor's illness and a few days before his death.
A Bench of this Court in the case of P. Saraswathi v. Lakshmi , has stated this part of the law on the subject in these words:
In a case where a litigant intends to overlook and by pass a registered document under which prima facie certain rights have become vested and under which third parties have acquired indefeasible rights, then the challenging party should be in a position to give such particulars about such undue influence which should form the basis of her complaint. The primary ground on which the plea of undue influence is founded is based on relationship. It is axiomatic that mere proof of relationship however near it may be, is not sufficient for a court to assume that one relation was in a position to dominate the will of the other. Such bonds of kinship which are universally felt should not be mistaken as equivalent to saying that the kinsman could unduly influence the other in the circuit of such bondage. Even if any advice is given, it may be influence, but not undue influence. The tie of relationship need not necessarily be used unwisely, injudiciously and unhelpfully so as to gain an unfair advantage by the relation who is advising the other relation. Particularly in a Hindu family a widowed mother who would rather be fairly and affectionately inclined to an unmarried daughter would not make undue preferences in favour of a married one who has already been provided for and who was well set in life. The sentiment, the traditional features of a Hindu Home., the love and affection of a mother towards her natural and last child which is always in one way unless there are very extraneous circumstances to assume otherwise should always prompt a Court to raise the reasonable presumption that any advice or influence which a parent brought to bear on his own child is not to gain an advantage for herself or to see that an unfair advantage is gained by another child of hers in preference to the challenging child. There is also one other important and salient feature which ought to be established on materials pleaded and acts established that the 'bargain is tainted by undue influence, 'and it is unconscionable that it could reasonably be said that the person to obtain unfair advantage for himself and so as to cause injury to the person sought relying upon his authority or aid. It is only after such particulars are made available and a reasonable proof thereof has been given, the onus probandi would shift on the so-called 'person of domination.' Until then the burden is on the complainant to establish it is so.
In a scholarly exposition of this aspect of law, a Bench of this Court has deliberated on the doctrine of undue influence and fraud in some details in the case of Madhavakrishnan v. Sami . The Bench after quoting from Halsbury's Laws of England, 4th Edition, page 174 on the subject has said about the law in our country in these words:
In India, the law as to undue influence is embodied in Section 16 of the contract Act. In order to satisfy the terms of Section 16 and thereby render a contract voidable because of undue influence the following two conditions must be established by the person seeking to avoid the transaction: (1) the other party to the transaction must have been in a position to dominate his will; (2) the other party should have obtained an unfair advantage by using the position. Clause (2) of Section 16 lays down a special rule of presumption as to when a person may be deemed to be in a position to dominate the will of another. They are among others: (1) where he holds a real or apparent authority over the other; (2) where he stands in a fiduciary relation to the other; (3) where he enters into a transaction with a person whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress. Clause (3) of Section 16 provides that where a person who is in a position to dominate the will of another, enters into a contract with him and the transaction appears, on the face of it or on the evidence adduced to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other. It is necessary to state that the rule in Clause (3) of Section 16 will only be attracted when it is established that one person is in a position to dominate the will of the other and that the transaction was on the face of it unconscionable.
The above position has been made clear in Ladli Prasad Jaiswal v. Kama Distillery Co., Ltd. , and in Subhas Chandra v. Ganga Prasad . The test has been laid down as follows in the latter decision; "The three stages for consideration of a case of undue influence were expounded in the case of Raghunath Prasad v. Sarju Prasad 46 M.L.J. 610, in the following words:
In the first place relations between the parties to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second stage had been reached namely, the issue whether the contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of providing that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. Error is almost sure to arise if the order of those propositions be changed. The unconscionableness of the bargains is not the first thing to be considered. The first thing to be considered is the relations of these parties. Were they such as to put one in a position to dominate the will of the other?
The learned Judge of the Supreme Court has extracted the following passage from the judgment of the Privy Council in Poosathurai .v. Kannappa Chettiar 38 M.L.J. 349.
It is a mistake (of which there are a good many traces in these proceedings) to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice and the other was in a position to dominate the will of the first in giving it. Upto that point, 'influence' alone has been made out. Such influence may be used wisely, judiciously, helpfully. But whether by the law of India or the Law of England, more than mere influence must be proved so as to render influence, in the language of the law 'undue.
19. We have dilated to the rule of initial burden of proof in the case where allegations of undue influence and fraud are made and the principles that are borne in mind before the rule of onus probandi is applied. We have adverted to this aspect of the law for the purpose of keeping the distinction as to the law of burden of proof in the case of Pardanashin and illiterate woman or the case where the rule of non est factum is applied and a case otherwise falling in the category of cases of undue influence and fraud, in which the initial burden has to be discharged by the person making the allegations before the onus probandi is applied. In the former case, there is no burden of proof upon a woman, who alleges that she was ignorant of the character and the contents of the documents for the reason of illiteracy or she being a Pardanashin woman. It has to be presumed in such a case that she could have transferred her rights to the other only for the reason of fraud or undue influence. In the latter case, the burden shall be upon the person alleging undue influence and fraud. The onus will shift only when there is a clear pleading in this behalf with necessary particulars and the initial onus is discharged.
20. Adverting to the facts of this case, we notice that the plaintiff after the death of her husband needed a male or female helper to collect paddy from the lessee and to look after her other affairs and that in the plaint, she has alleged, she had no other relative except her brother, who was not in fact on good terms with her and "the 1st defendant, the daughter of her brother who had no connection with her father, was close to her (plaintiff) from 1974-75 onwards and helping her. The defendants told her to give her a registered power of attorney to collect the arrears of paddy from Arumugam. She suspected nothing foul and agreed to execute the power of attorney. The plaint also contains a statement that the 2nd defendant took her signature in the document which was made ready, the contents of the document were not read over to her, the 2nd defendant/respondent had taken her to the Office of the sub Registrar and instructed her that she need not talk before the Sub Registrar and asked her to state that she had no heir other than the 1st defendant. The plaintiff, it is said in the plaint, then put her thumb impression in the presence of the Sub Registrar. The Sub Registrar did not ask her anything from her. She did not purchase any stamp paper or pay any money for the registration charges. The 2nd defendant undertook to get the said document from the Sub Registrar's Office and the plaintiff believed the same. Two years after the registration of the said document, i.e., to say somewhere in January, 1977, the defendants came and lived with the plaintiff. Even at that time, the plaintiff did not suspect the defendants. The plaintiff informed the lessee Arumugam that she had executed a power of attorney in favour of the defendants and that the leasehold paddy in question could be given to the defendants in future. The defendants stayed with the plaintiff about 61/2 months. The plaintiff did not suspect anything at that time. Later on, the defendants went and lived in some other house. The defendants stopped visiting the plaintiff after some time. The plaintiff came to know that the defendants did not collect the lease paddy from the said Arumugam and they did not supervise the land in question. She for the said reason went and asked the defendants to hand over the power of attorney stating that she would collect the lease paddy directly. The defendants at that stage only informed that she had executed a settlement deed in their favour on 23.01.1975 and that they had got the power to drive herout of the house. It is a case, in our opinion, of an illiterate woman moving the Court alleging that she acted only on the basis of there presentation of the defendants when she put her thumb impression on the document in the impugned settlement deed in the presence of the Sub Registrar. It is a case of an illiterate woman thus seeking the protection of law as she executed the document without knowing its true character and contents. Learned single Judge has fallen in error seeking any further pleadings and/or proof of undue influence and fraud from her. The burden in this behalf is upon the defendants. The impugned judgment for the said reason has to be set aside. Since both the courts below have fallen in error in this behalf and have not approached the case in the light of the correct law on the subject, unless evidence of the case is analysed afresh, it will not be possible to give any final verdict. It is a fit case, in our opinion, although the proceedings have taken quite a few years, for remand to the Court of Appeal below for a hearing and adjudication in accordance with law on the basis of the evidence already on the record.
21. In the result, the appeal is allowed. The judgment and decree is A.S. No. 231 of 1981 on the file of the High Court, Madras, are set aside. The case is remitted to the Court of Appeal below for a hearing a disposal in accordance with law. On the facts of this case, however, we make no order as to costs.