Allahabad High Court
Vishram Shukla vs Smt. Rajdei And Others on 4 February, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 70 Reserved A.F.R. Case :- SECOND APPEAL No. - 108 of 1995 Appellant :- Vishram Shukla Respondent :- Smt. Rajdei And Others Counsel for Appellant :- Arvind Kumar,B.M. Pandey,N.L. Tripathi, R.S. Maurya,Raj Kumar Kesari,Vijay Kumar Rai Counsel for Respondent :- Ram Kishore Pandey,V.K. Tripathi,Virendra Kumar Gupta Hon'ble J.J. Munir,J.
1. This is a plaintiff's Second Appeal, arising from a Suit for specific performance of contract.
2. The facts giving rise to this Appeal are these:
One Kewla Prasad was the bhumidhar of Plot No.563, ademeasuing 2-17-17, situate at Mauza Tisentulapur, Pargana Khairagarh, District Allahabad (now Prayagraj). Kewla Prasad transferred an area of 12 biswa 17 dhur in favour of Ram Shringar, Ram Surat and Kailash Nath, sons of Shyam Lal. He transferred the residue of 2 bigha 5 biswa in favour of Smt. Rajdei, the wife of one of his grandsons, Uma Shankar in the branch of his son, Shiv Mohan and his minor son, Girja Shankar. The transfer aforesaid in favour of Smt. Rajdei and Girja Shankar was made through a registered sale deed dated 29.05.1986. About a month and a half after the sale deed last mentioned was executed by Kewla Prasad in favour of Smt. Rajdei and Girja Shankar (minor), it was claimed by one Vishram Shukla that Smt. Rajdei and the minor, Girja Shankar, represented by his mother and guardian, Smt. Sukhdei, had executed a registered agreement to sell in his favour on 15th July, 1986, covenanting to transfer the property, received by them through the sale deed dated 29.05.1986. The two had settled under the agreement to sell dated 15.07.1986, a sale consideration of Rs.60,000/-.
It was alleged by Vishram Shukla that at the time of registration of the agreement, Smt. Rajdei and Smt. Sukhdei, on behalf of the minor, had accepted in earnest a sum of Rs.35,000/- with a covenant that the balance of Rs.25,000/- would be paid at the time of execution of the sale deed. The sale deed was agreed to be executed within two years. Vishram Shukla claimed that he was always ready and willing to secure necessary execution and registration of the sale deed and for the purpose, sent a notice on 13.06.1988 to Smt. Rajdei and Smt. Sukhdei, representing the minor's interest, asking them to appear before the Sub-Registrar, Meja on 15.07.1988. But the two did not appear.
It was on these allegations that Vishram Shukla instituted Original Suit No.529 of 1988 for specific performance of contract, arraying Smt. Rajdei as defendant no.1, Girja Shankar, then a minor aged about 17 years through his mother and next friend, Smt. Sukhdei as defendant no.2 and Smt. Sukhdei as the third defendant. There is an alternate relief claimed in the suit for refund of the earnest of Rs.35,000/- with interest, if specific performance be refused. This suit was instituted on 04.08.1988. Vishram Shukla, who has died pending this Appeal, represented by his four sons, who are his heirs and LRs, is the plaintiff-appellant here, whereas Smt. Rajdei, Girja Shankar and Smt. Sukhdei are the three defendant-respondents. The deceased plaintiff-appellant, represented by his heirs and LRs, who are appellant nos.1/1 to 1/4, shall hereinafter be referred to as 'the plaintiff'. The three defendants shall hereinafter be referred to as 'the defendants', wherever the reference is to all of them and by their names, in case of an individual reference.
3. A joint written statement dated 27.02.1989 was filed by the defendants, generally traversing the plaint allegations. The sale deed of 29th of May, 1986 in favour of Smt. Rajdei and the minor Girja Shankar was not denied and it was averred that the purchasers had become bhumidhars in possession of the land transferred to them. It was said in the additional pleas that on 29.05.1986, the three other sons of Kewla Prasad, to wit, Lal Mani, Raj Narain and Gulab Shankar had quarreled over the assignment of land by Kewla Prasad to the two defendants. They had fomented Daya Shankar, another son of Shiv Mohan, their brother and also a grandson of Kewla Prasad to protest that he had not been assigned any land by Kewla Prasad. This had led to strife in the family and in order to buy peace, Smt. Rajdei and Smt. Sukhdei, acting for the minor, agreed to transfer to Daya Shankar one-third share in whatever land was assigned to them by Kewla Prasad under the sale deed of 29.05.1986. Smt. Rajdei and Smt. Sukhdei had asked Daya Shankar to offer a reasonable price for the purpose, to which Daya Shankar said that he did not have ready money. He demanded that a registered agreement be executed in his favour and upon necessary resources being garnered, he would get a sale deed executed for the agreed one-third share.
4. It is the defendants' case that the proposal was accepted by Smt. Rajdei and by Smt. Sukhdei on behalf of the minor, Girja Shankar, that was settled at a bargained price of Rs.9,000/- for the one-third share. It is pleaded in the written statement that this settlement was arrived at in order to quell strife in the family of Shiv Mohan. The defendants came up with a specific case that on 15.07.1986, Smt. Rajdei and Sukhdei went over to the Sub-Registrar's office to execute a registered agreement for the one-third part of whatever had been assigned to them under the sale deed of 29.05.1986. Since the plaintiff is a relative of the defendants and had been visiting Village Tikapur, while Smt. Sukhdei's husband, Shiv Mohan was not in town, the plaintiff accompanied Smt. Rajdei and Smt. Sukhdei to the Sub-Registrar's office. It is pleaded that at the time of execution of the registered agreement, Daya Shankar agreed to pay in earnest a sum of Rs.3500/- out of the agreed sale consideration of Rs.9,000/-. There is a specific plea raised in the written statement that both Smt. Rajdei and Smt. Sukhdei are illiterate and rustic women hailing from a village, and taking advantage of their handicap arising from ignorance, the plaintiff illegally got a registered agreement to sell in his favour for the entire land admeasuring 2 bigha 3 biswa.
5. It is specifically pleaded further that on 15.07.1986, the defendants did not execute any registered agreement in favour of the plaintiff, contracting to sell the said land, which shall hereinafter be referred to as the 'suit property', for a sum of Rs.60,000/-. It is also pleaded that they never received the earnest of Rs.35,000/- from the plaintiff and never executed the registered agreement to their knowledge. It is also pleaded on behalf of the defendants that the registered agreement to sell dated 15.07.1986 in favour of the plaintiff (for short, 'the suit agreement') is the product of fraud and deceit. Neither the contents of the suit agreement were read out to the defendants nor were they made understand it. It is also pleaded specifically that they never instructed the suit agreement to be scribed nor were they aware of its contents. It is further pleaded in paragraph No.23 of the written statement that the plaintiff, along with Lal Mani, Raj Narain and Gulab, who are brothers of Shiv Mohan, have connived together to secure execution of the suit agreement dated 15.07.1986 fraudulently, taking advantage of the defendants' ignorance. It is particularly pleaded that the defendants came to know of the suit agreement and the fraud played upon them in consequence of service of summons of the suit, which they could understand after necessary consultations with their local Counsel. It is also averred in paragraph No.25 that the plaintiff, in any event, is not entitled to a decree of specific performance.
6. On the pleadings of parties, the Trial Court struck the following issues:
"1- Whether the plaintiff has entered into an agreement with defendants nos.1 and 2 and paid Rs.35,000/- as advance?
2- Whether the plaintiff has given any notice to defendant, as alleged?
3- Whether agreement has been procured by practising fraud on defendant?
4- To what relief?"
7. In support of the plaintiff's case, the suit agreement in original was filed and the plaintiff examined himself as PW-1. Another witness, Shrinath was examined as PW-2, who is an attesting witness to the suit agreement. The defendants, on the other hand, examined Smt. Rajdei as DW-1 and Shiv Mohan as DW-2.
8. There is an interesting feature about the proceedings in the suit. After the parties' evidence was over and the suit was set down for address of arguments, the plaintiff did not appear and the defendants' learned Counsel did not address the Court in his absence. The Trial Judge proceeded to decide the suit on merits upon considering the evidence of parties on each of the issues and vide judgment and decree dated 03.12.1991. The suit was decreed for specific performance.
9. An application to set aside the decree dated 03.12.1991, that was brought dubbing the judgment ex parte, was rejected by the Trial Judge vide order dated 15.02.1992. It was held that the Court had proceeded under Order XVII Rule 3 CPC and pronounced judgment on merits. It does not appear from record that this order was disturbed. There is no quarrel about it any more.
10. The defendants appealed the Trial Court's decree to the District Judge of Allahabad, where it was numbered as Civil Appeal No.197 of 1992. The appeal was assigned to the learned IIIrd Additional District Judge, Allahabad, before whom it came up for hearing on 17.11.1994. The learned Additional District Judge, by his judgment and decree dated 17.11.1994, allowed the appeal and dismissed the suit, leaving parties to bear their own costs.
11. Aggrieved, this appeal from appellate decree was instituted on 27.01.1995 by the plaintiff.
12. This appeal was admitted to hearing on 03.10.2007. On 17.12.2007, it came up for hearing before the Court. The Court, holding service to be sufficient, proceeded to determine the appeal ex parte by the judgment and decree dated 17.12.2007. The appeal was heard ex parte on the following substantial questions of law:
"(i) Whether the lower appellate court acted illegally in reversing the finding recorded by the trial court on irrelevant circumstances culled out by the lower appellate court itself?
(ii) Whether the lower appellate court has acted illegally in accepting the vague assertion of fraud and mis-representation made by the defendants in the written statement without any particulars in the pleading and the evidence on the record?
(iv) Whether none of the particulars noticed by the lower appellate court in support of its judgment, were pleaded in the written statement and proved by the defendants. No suggestion was made at all during the course of evidence and the argument before the trial court. The lower appellate court has based its finding only on surmises and conjectures. The finding recorded by the lower appellate court, therefore, is arbitrary, erroneous, illegal and perverse?"
13. The appeal was allowed, answering all the substantial questions of law in the plaintiff's favour, with the result that the Lower Appellate Court's decree was set aside and that of the Trial Court restored.
14. An application to set aside the ex parte judgment and decree and re-admit the appeal to its original file and number was made to this Court on behalf of the defendants. The application was allowed on 21.05.2013 and the ex parte judgment and decree dated 17.12.2007 was set aside. This Court, however, proceeded to hear the appeal on merits. The entire ex parte judgment dated 17.12.2007 was extracted by the Court in the judgment and order dated 21.05.2013 and it was remarked that the Court was not inclined to take a different view after hearing learned Counsel for the defendants at length. This Court, however, modified the decree of the Trial Court in that, that while restoring it for the relief of the specific performance, a direction was made to the plaintiff to pay an additional sum of Rs.70,000/- along with the balance sale consideration of Rs.25,000/-, requiring all of it to be deposited within two months of the date of judgment. There were certain incidental directions also in the decree.
15. On a Petition for Special Leave being preferred to the Supreme Court, leave was granted by their Lordships and the Civil Appeal allowed by an order dated 23.08.2019, with a remand to this Court, directing the second appeal to be decided after hearing the learned Counsel for the parties. The suit being of the year 1988, this Court was requested to decide the appeal preferably within six months. This appeal came up for hearing before this Court on 22.01.2020 and two more substantial questions of law were framed, which read:
"(V) Whether in case of an illiterate and rustic woman, who raises a plea of non est factum, the burden of proof is reversed and lies upon the other side, who propound the document?
(VI) Whether a document in respect of which it is pleaded by a party that it was obtained by the other side through fraud and misrepresentation, is the said document voidable at the option of the party claiming this fraud or misrepresentation, or it is void?"
16. It must also be noticed that an application to bring on record additional evidence under Order XLI Rule 27 CPC was made on behalf of the plaintiff, particularly, bearing in mind substantial question of law No. (V), formulated vide order dated 22.01.2020. This application sought to admit to the record certified copies of sale deeds dated 30.05.1997, 30.06.2010, 22.07.2011, executed by defendant no.1, Smt. Rajdei in favour of different third parties. Also, a certified copy of the khatauni issued on 27.01.2020, relating to Khata No.77 for the Fasli Years 1423-1428, was sought to be brought on record as additional evidence. This application was allowed vide order dated 25.02.2020 and the four documents, whereof formal proof was dispensed with, were ordered to be exhibited vide order dated 01.07.2021. The documents have been exhibited, under orders of the Court by the Joint Registrar, as Exhibits A1, A2, A3 and A4.
17. Heard Mr. Raj Kumar Kesari, learned Counsel for the plaintiff and Mr. Virendra Kumar Gupta, learned Counsel appearing on behalf of the defendants.
18. The foremost substantial question of law, that is required to be answered, is the one numbered as (V), formulated vide order dated 22.01.2020. Along with it, Question No. (ii), initially formulated, and Question No. (VI), also formulated vide order dated 22.01.2020, can be conveniently considered.
19. The question, whether in the case of an illiterate and rustic woman, who raises a plea of non est factum, the burden of proof is reversed and lies upon the other side, who propounds the document, has been a matter of issue in the past also. It must be said straightaway that a plea of non est factum raised by any illiterate and rustic woman, who says that she could not understand the contents or even the nature of the document, to which she has appended her mark, is distinct and different from a plea of fraud and misrepresentation. It is quite another matter that the non est factum pleaded by an illiterate and rustic woman may be the result of fraud and misrepresentation, or pleaded to be so, to explain how she appended her mark to a document, the contents whereof she did not understand or even its nature. But a plea of non est factum, raised by an illiterate and rustic woman, is distinct and different from a plea of fraud and misrepresentation, raised as such, to question the validity of one's own solemn deed.
20. The principle about reversal of burden applicable to illiterate and rustic woman evolved essentially from the plea of non est factum in England, where there was no principle about reversal, but the distinction between this plea on one hand and fraud and misrepresentation on the other, was clearly delineated. The rule about reversal of burden was invented in the Indian context by the Privy Council relating to pardanashin women through a series of decisions and later came to be extended to illiterate and rustic women as a class by Indian Courts, who suffers from the same kind of disabilities as pardanashin women.
21. I had occasion to trace and consider the development of the rule, besides subtleties of its distinction from a plea of fraud and misrepresentation, as also its application to illiterate and rustic woman, in Mahendra Singh v. Ramesh Singh, 2021(2) ALJ 606. I would venture to quote wholesomely from Mahendra Singh (supra) all that has bearing on the point and the substantial question of law under consideration. In Mahendra Singh, the origin of the rule and its development in India was adumbrated thus:
"31. It would be profitable first to look at the principle about a person's solemn deed, regarding which he/ she says that he/ she signed, understanding it to be something else. This plea is often described as the mind not accompanying the signatures. It is also familiarly referred to in the world of law as non est factum. This plea, on the basis of which the maker of a solemn deed could avoid liability about the disposition made, had its origin in the English Law. The principle finds its classical statement in the oft-quoted decision of Byles, J. in Foster vs. Mackinnon, [1869(4) C.P. 704]. It is held there:
"it is invalid not on the ground of fraud where fraud exists but on the ground that the mind of the signor did not accompany the signature: in other words, that he never intended or contemplated to sign, and, therefore, in contemplation of law never did sign the contract to which his name is appended."
The principle had a long history of evolution in England and was always recognized as distinct and different from a plea to avoid a transaction on the ground of fraud, duress or undue influence. There was, however, no principle about reversal of burden of proof, that obliged the beneficiary of a transaction to prove its due understanding by the maker of a solemn deed, who alleged non est factum. The principle about reversal of burden in the case of pardanashin women, in the first instance and its later extension to other ignorant and illiterate women, as a distinct class, entitled to that protection in the matter of disposition of their rights in property, was evolved by the Privy Council, bearing in mind disabilities, associated with the members of the beneficiary class.
32. The origin of the principle about reversal of burden regarding transactions entered into with pardanashin women and the way it evolved about how that burden was to be discharged, was the subject matter of decision by the Supreme Court in Mst. Kharbuja Kuer vs. Jangbahadur Rai and others, AIR 1963 SC 1203. In the said decision, tracing the origin of the rule and laying down by what standard and in what manner that burden is to be discharged, K. Subba Rao, J. (as His Lordship then was) held:
"(5). ......... This proposition, in our view, is clearly wrong and is contrary to the principles laid down by the Privy Council in a series of decisions. In India pardahnashin ladies have been given a special protection in view of the social conditions of the times; they are presumed to have an imperfect knowledge of the world, as, by the pardah system they are practically excluded from social intercourse and communion with the outside world. In Farid-Un-Nisa v. Mukhtar Ahmad, 52 Ind App 342 at p. 350: (AIR 1925 PC 204 at p. 209), Lord Sumner traces the origin of the custom and states the principle on which the presumption is based. The learned Lord observed:
"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 also points out:
"Of course fraud, duress and actual undue influence are separate matters."
It is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies shall not be confused with other doctrines, such as, fraud, duress and actual undue influence, which apply to all persons whether they be pardahnashin ladies or not.
(6). The next question is what is the scope and extent of the protection. In Geresh Chunder Lahoree v. Mst. Bhuggobutty Debia, 13 Moo Ind App 419 (PC) the Privy Council held that as regards documents taken from pardahnashin women the court 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 pardahnashin woman. In Kali Baksh v. Ram Gopal, 43 Ind App 23 at p. 29 (PC), the Privy Council defined the scope of the burden of a person who seeks to sustain a document to which a pardahnashin lady was a party in the following words:
"In the first place, the lady was a pardahnashin lady, and the law throws round her a special cloak of protection. It 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 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."
The view so broadly expressed, though affirmed in essence in subsequent decisions, was modified, to some extent, in regard to the nature of the mode of discharging the said burden. In 52 Ind App 342 at p. 352: (AIR 1925 PV 204 at p. 210) it was stated:
"The mere declaration by the settler, subsequently made, that she had not understood what she was doing, obviously is not in itself conclusive. It must be a question whether, having regard to the proved personality of the settler, the nature of the settlement, the circumstances under which it was executed, and the whole history of the parties, it is reasonably established that the deed executed was the free and intelligent act of the settler or not. If the answer is in the affirmative, those relying on the deed have discharged the onus which rests upon them."
While affirming the principle that the burden is upon the person who seeks to sustain a document executed by a pardahnashin lady that she executed it with a true understanding mind, it has been held that the proof of the fact that it has been explained to her is not the only mode of discharging the said burden, but the fact whether she voluntarily executed the document or not could be ascertained from other evidence and circumstances in the case. The same view was again reiterated by the Judicial Committee, through Sir George Rankin, in Hem Chandra v. Suradhani Debya, AIR 1940 PC 134. Further citation is unnecessary. The legal position has been very well settled. 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."
33. The application of the rule, regarding reversal of burden, governing transactions by pardanashin women was acknowledged to be extended to illiterate and ignorant women by this Court in Paras Nath Rai vs. Tilesar Kunwar, 1965 All. L.J. 1080, which has been followed by this Court in Laxmi Narain (supra). The extension of the rule to an illiterate widow was acknowledged by this Court in Manohar Lal vs. Rajeshwari Devi and others, AIR 1977 All 36.
34. The earliest origin for an extension of the rule about reversal of burden relating to pardanashin women to other classes of women, subject to the same disabilities, though not strictly pardanashin, had origin in the decision of the Privy Council in Hodges and another vs. Delhi and London Bank, Limited, (1899-1900) XXVII Indian Appeals 168. The suit that led to the appeal was about the validity of certain transactions between a traditional Indian women from Kashmir (who had married a British Army Officer) and a Bank, where she had dealt with her shares, assigning them to the Bank, in order to liquidate a loan, if required. The loan appears to have been taken by her son, a certain Colonel Oldham, from the Bank. The loan agreement on the debtor's part was signed by Colonel Oldham, Katherine Hodges and one Captain Craster. The Indian woman had lived as a British Army Officer's wife, and in course of time had become a widow. She had taken the name of Katherine Hodges. In the loan agreement, though she was a party, the loan was taken by her son, Colonel Oldham. Katherine Hodges and Captain Craster were understood to have stood sureties with joint and several liability. In order to secure the loan advanced to her son, Katherine Hodges had handed over to the Bank certain shares in other Banks, through a letter written by her to the Bank. There was also a power of attorney, authorizing the Bank to sell the shares, in order to liquidate the loan, in case conditions of repayment were violated. After her death, there was some default by Colonel Oldham. There are other issues about discharge of sureties, but all that is not relevant. The Bank brought a suit to recover against the parties to the loan agreement personally, and from the estate of Katherine Hodges. On behalf of the estate of Katherine Hodges, there was a very interesting defence that she "was a quasi purdanashin lady, of no education, unable to read or write English, and quite incapable of understanding the terms of the three instruments in question; which were not explained to her, and on which she had no independent advice." (quoted verbatim from the report of the judgment). The plea in substance asked for extension of the principle governing cases of dealings by a third party with pardanashin women, regarding disposition of their property or interest. In answering the question, Lord Hobhouse, speaking for the Board, held:
"In this part of the case there is no discrepancy in the evidence except on some small immaterial details, and none at all in the findings of the two Courts. It is abundantly clear that Mrs. Hodges was not a pardanashin. The term quasipurdanashin seems to have been invented for this occasion. Their Lordships take it to mean a woman who, not being of the pardanashin class, is yet so close to them in kinship and habits and so secluded from ordinary social intercourse, that a like amount of incapacity for business must be ascribed to her, and the same amount of protection which the law gives to pardanashin must be extended to her. The contention is a novel one and their Lordships are not favourably impressed by it. As to a certain well known and easily ascertained class of women, well known rules of law are established, with the wisdom of which we are not now concerned. Outside that class it must depend in each case on the character and position of the individual woman 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. Mrs. Hodges was an independent woman of more than ordinary capacity for, and experience in, dealing with property. It would be very unjust to hold that the Bank was bound to treat her on any other footing."
(Emphasis supplied)
35. The principle then, on which the decision of the Privy Council turned, was not to extend the protection to illiterate women or those who could not read, write or understand English as a class, like pardanashin women by treating them to be what was dubbed as quasi pardanashin. Rather, it was held that extension of the protection, that is to say, reversal of burden, in cases of such women, who were claimed to be illiterate or otherwise not acquainted with the ways of the world or as it is described in later decisions as secluded from the society, would depend in each case on the character and position of the person concerned.
36. In Sm. Sonia Parshini vs. Sheikh Moula Baksha, AIR 1955 Cal 17, Debabrata Mukharjee, J, speaking for the Division Bench of the Calcutta High Court, posed the following question, opening the judgment:
"The question raised in this appeal is whether a deed of sale executed by an illiterate woman without the benefit of independent advice is subject to the same jealous scrutiny of the Court as an instrument executed in similar circumstances by a pardanashin lady strictly socalled."
His Lordship went on to hold thus:
"(6) The substantial question here is whether in the facts and circumstances proved 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 paradanashin 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 contact 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. Questions 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 in spite of the restraints of the parda have sufficient understanding 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 20 pardah in avoidance of 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.
(Emphasis supplied)
37. To the understanding of this Court, this rule has been approved to apply to the identified class of women, called pardanashin on a presumptive basis. In dealing with pardanashin women, the rule appears to be that the beneficiary of transactions from such women, where they deny the transaction or plead non est factum, must discharge the burden to affirmatively prove that the executor of the document understood what the transaction was, as also its terms broadly. Even in case of pardanashin women, there are noticeable remarks in the authorities which indicate that in a given case, it could be shown that a particular pardanashin woman, though properly a member of that class, was wordly-wise, and, therefore, not entitled to a protection of the rule about reversal of burden. In course of time, the rule has been extended to other ignorant and illiterate women, who are similarly circumstanced and subject to the same disabilities as pardanashin women. The raison d'être to extend protection of the rule in question as remarked in Sm. Sonia Parshini, is not a membership of the class, known as pardanashin women, but the presumed inability of members of that class to comprehend the nature of the transaction, they have gone about due to myriad factors, that inhibit their understanding. For the same reason, the protection has been extended to women who are ignorant and illiterate and frequently described as unacquainted with the ways of the world.
38. This Court cannot ignore to refer to a decision of the Madras High Court in Chidambaram Pillai and 3 others vs. Muthammal and another, (1993) 1 M.L.J. 535, which undertakes a most comprehensive review about the law on the subject of reversal of burden in case of pardanashin women and other illiterate women. The decision in Chidambaram Pillai (supra) expounds the principle that the protection is available to illiterate women in the same manner as pardanashin women. Their Lordships of the Division Bench in Chidambaram Pillai (supra) have expounded and summarized the principles about extension of the rule regarding reversal of burden to illiterate women, thus:
"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 male folk and are kept away from social intercourse and communion with the outside world. The view of the Lahore Court in the case of Favvar-ud-din v. Kutab-ud-Din1 had almost worked as an alarm for the courts to develop a sense that any strict meaning to parda 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 curse 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."
(emphasis supplied)"
22. The reversal of burden in case of illiterate and rustic woman may be a rule that is dependent on dynamic social conditions. The kind of illiterate and rustic women, who are entitled to the same protection as pardanashin women in contemporary time, may be a dying breed with more empowerment of women in rural areas as well, but this case has arisen in the decade of eighties of the last century, when conditions were not very different from what obtained in the context when the rule was invented and applied. It is also clear by the distinction noticed in Mahendra Singh that a plea of fraud and misrepresentation by a defendant is generically different from a plea of non est factum. Once an illiterate and rustic woman urges a plea of non est factum, the underlying fraud or misrepresentation pleaded is not material. What is material is non est factum, which means no more than this that handicapped by her utter illiteracy and lack of acquaintance with the ways of the world, she was incapable of understanding the nature of the transaction that she went about and affixed her mark to. Once that plea is urged, the burden of proof would certainly lie on the beneficiary of the document executed by an illiterate and rustic woman to affirmatively show that she understood clearly the nature of transaction and what she was undertaking to do by her solemn deed. This burden of proof cast upon the beneficiary of the transaction, embodied in the document, can be discharged not only by leading evidence to show that the document was explained to her and she understood it, but by other evidence, direct and circumstantial, as held in Mst. Kharbuja Kuer v. Jangbahadur Rai and others, AIR 1963 SC 1203. The relevant part has been extracted in the decision of this Court in Mahendra Singh.
23. Mr. Kesari, learned Counsel for the plaintiff, has been at pains to show from the pleadings and the evidence that Smt. Rajdei and Smt. Sukhdei well understood the nature of the transaction, when they executed the suit agreement. Mr. Kesari has drawn the attention of the Court to the examination-in-chief of Smt. Rajdei, where she has said that she went to the Sub-Registrar's office along with her month-in-law, Smt. Sukhdei, besides Lal Mani, Gulab and Raj Narain, all of whom are brothers of Shiv Mohan, Rajdei's father-in-law and Smt. Sukhdei's husband. Mr. Kesari has impressed upon the Court that if the case of the defendants were to be believed, that they had gone to the Sub-Registrar's office to execute an agreement to sell in favour of Daya Shankar to settle inequities of distribution of property within the family of Kewla Prasad, in the branch of Shiv Mohan, the presence of Daya Shankar at the Sub-Registrar's office, who did not object to the suit agreement being executed in favour of the plaintiff, negatives the defendant's case.
24. It is pointed out elsewhere from the evidence of Shiv Mohan that his wife, Smt. Sukhdei had paid a sale consideration of Rs.27,000/- to his father for the purpose of execution of the sale deed in favour of the two defendants. It has been strongly urged by Mr. Kesari that the presence of close relatives at the time of execution of the suit agreement, would show that the two defendants, assuming that they are illiterate and rustic women, were in the company of those who would have advised them about the nature of the transaction. In the presence of three brothers of Shiv Mohan, besides the intended beneficiary of the agreement to sell, that never came to be executed, that is to say, Daya Shankar, it cannot be gainsaid, according to the learned Counsel for the plaintiff, that the two illiterate defendants could have executed the suit agreement without understanding its contents or nature. The learned Counsel, therefore, hints through these submissions that there are circumstances to show that assuming the handicap of the two defendants, due to illiteracy and lack of understanding of the ways of the world, they were in company, at the relevant time, of those whose guidance could not have permitted them to falter.
25. So far as reference to the cross-examination of DW-1, Shiv Mohan is concerned, the mention there of the sale consideration of Rs.27,000/- being paid by Smt. Sukhdei to her father-in-law, Kewla Prasad for the sale deed, is an endeavour to show that Smt. Sukhdei, defendant no.3, despite her illiteracy, was not a woman unacquainted with the ways of the world. She was worldly-wise. The Court has also been elaborately addressed by the learned Counsel for the plaintiff on the point that PW-2, Shrinath, who is an attesting witness to the suit agreement, is the sister's son of Kewla Prasad, that is to say, a cousin to Shiv Mohan, being his aunt's son. He is, thus, closely related to Shiv Mohan's daughter-in-law, defendant no.1 as well as defendant no.2, who is Shiv Mohan's brother and defendant no.3, who is Shiv Mohan's wife and Kewla Prasad's daughter-in-law. He has affirmed the transaction, including payment of the earnest by the plaintiff. The evidence of this witness has been emphasized, where it is said that the contents of the suit agreement were read over to the defendants by the scribe and also by the Registrar. He has also emphasized in his testimony that the Registrar had ascertained if the defendants had received the earnest of Rs.35,000/-, which they acknowledged before the Sub-Registrar. By pointing out to all these details of the evidence of PW-2, it is the endeavour of the plaintiff to show that whatever be the defendants' handicap, they well understood the transaction that they went about.
26. There is one thing which the plaintiff had added to the cart of evidence before this Court by invocation of the provisions of Order XLI Rule 27 CPC. It is the three sale deeds executed by Smt. Rajdei in favour of third parties, relating to immovable property. By relying on these deeds, it is the plaintiff's endeavour to show that Smt. Rajdei, though illiterate, is not a woman who does not understand the ways of the world. If she can go about executing sale deeds of land, she must be assumed to possess sufficient knowledge of worldly affairs to understand what she was doing, when she appended her mark to the suit agreement. She cannot get away with the protection, to which an illiterate and rustic woman is otherwise entitled. This endeavour of the plaintiff is different from showing that the defendants, or for that matter, defendant no.1, Smt. Rajdei did actually understand the nature and contents of the suit agreement. This part of the effort is to show that she is not at all entitled to invoke the rule about reversal of burden on account of her illiteracy and rustic way of life.
27. Towards the close of his submissions, Mr. Kesari has relied upon a decision of this Court in Ramesh Chand v. Sant Ram, 2020 (5) ALJ 453 to submit that merely because a person is illiterate, burden of proof would not shift to the beneficiary of the transaction. This contention, based on the decision in Ramesh Chand (supra), shall be dealt with a little later in the course of this judgment.
28. Mr. Virendra Kumar Gupta, learned Counsel for the defendants, on the other hand, has been equally at pains to show that the transaction was conceived as a settlement of inequities that arose within the family of Kewla Prasad and his children, due to the sale deed that he executed in favour of two sons of Shiv Mohan, depriving the third, Daya Shankar and particularly, three of his own sons. It is pointed out that faced with bickerings in the family, the defendants had agreed to convey a one-third share to Daya Shankar and for the purpose, had proceeded to the Sub-Registrar's office to execute a registered agreement to sell in Daya Shankar's favour. He has drawn the attention of the Court to Paragraph No.16 of written statement, where the motive for the intended transaction, that made the defendants go to the Sub-Registrar's office, is disclosed. Paragraph No.16 of the written statement reads:
"16. That the defendant, Rajdei for herself and the defendant, Sukhdei, acting as the defendant, Girja Shankar's guardian and mother, agreed to sell for a consideration of Rs.9000/-, their one-third part of Gata No.563, admeasuring 2 bigha 3 biswa in favour of Daya Shankar, to which Daya Shankar also agreed and this led to an end the strife amongst Shiv Mohan's descendants."
29. It is then pointed out by Mr. Virendra Kumar Gupta that it is universally said in the testimony of all the witnesses, including the two plaintiff's witnesses and the two on the defendants' side that a meeting (Panchayat) was held fifteen days prior to the execution of the suit agreement. In the said meeting, according to the testimony of DW-1 and DW-2, it was decided that one-third share in Gata No.563 would be transferred in favour of Daya Shankar. It is emphasized that both the defendants, particularly DW-1, Smt. Rajdei, in her testimony is emphatic that she never intended to transfer her property to the plaintiff. It is also pointed out that Daya Shankar was present at the time of execution of the document and defrayed all expenses, like travel and registration charges. In this connection, attention of the Court has been drawn to the testimony of DW-1. It is also urged by Mr. Gupta that there is not the slightest evidence to show that Shiv Mohan had any urgent need to sell off the property to liquidate any loan or meet expenses for some child's education. Smt. Rajdei has specifically denied in her testimony that there was a debt to liquidate.
30. This Court is conscious of the fact that it is not our province to appreciate the niceties of evidence, or for that matter, much of evidence. The evidence is to be examined in the context of the substantial questions of law that arise for consideration and the way the case of parties, on the evidence led, has been decided by the Courts below. It has been held, so far as substantial question of law No. (V) is concerned, that burden would be upon the party who takes from an illiterate and rustic woman under her deed, and not upon the woman who impugns her deed on the ground that she never understood its nature or contents, handicapped by her illiteracy and lack of acquaintance with the ways of the world. It has also been held that to discharge this burden, not only direct evidence may be led to show that the document, that an illiterate and rustic woman executed, was read over and explained to her, but other evidence, particularly circumstances, can also be shown, that point to the fact, one way or the other, whether a woman, who is handicapped in the manner under reference, did understand the contents and nature of the transaction embodied in her deed.
31. It has to be seen by this Court whether the two Courts below have approached the case of parties and evidence, without faltering on the law and in the manner that their conclusions accord with the answer to the question. It is to this extent that this Court can look into the case of parties and evidence. After all, a cause cannot be decided bereft of the facts, on the foot of which it arises. In this connection, reference may be made to the authority of their Lordships of the Supreme Court in K.N. Nagarajappa and others v. H. Narasimha Reddy, AIR 2021 SC 4259, where it has been held:
"14. Undoubtedly, the jurisdiction which a High Court derives under Section 100 is based upon its framing of a substantial question of law. As a matter of law, it is axiomatic that the findings of the first appellate court are final. However, the rule that sans a substantial question of law, the High Courts cannot interfere with findings of the lower Court or concurrent findings of fact, is subject to two important caveats. The first is that, if the findings of fact are palpably perverse or outrage the conscience of the court; in other words, it flies on the face of logic that given the facts on the record, interference would be justified. The other is where the findings of fact may call for examination and be upset, in the limited circumstances spelt out in Section 103 CPC.
15. Section 103 CPC reads as follows:
"103. Power of High Court to determine issues of fact In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,-
(a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or
(b) which has been wrongly determined by such Court or Courts reason of a decision on such question of law as is referred to in section 100."
16. In the judgment reported as Municipal Committee, Hoshiarpur v. Punjab State Electricity Board2, this court held as follows:
"26. Thus, it is evident that Section 103 CPC is not an exception to Section 100 CPC nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 CPC in service, the High Court has to record a finding that it had to exercise such power, because it found that finding (s) of fact recorded by the court (s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below.
27. There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647]; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan [(1999) 6 SCC 343] and Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740].)
28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483]"
17. In a recent judgment of this court, Narayan Sitaramji Badwaik (Dead) Through Lrs. v.Bisaram3 this court observed as follows, in the context of High Courts' jurisdiction to appreciate factual issues under Section 103 IPC:
"11. A bare perusal of this section clearly indicates that it provides for the High Court to decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for the disposal of the appeal has not been determined by the lower Appellate Court or by both the Courts below. And second, when an issue of fact has been wrongly determined by the Court(s) below by virtue of the decision on the question of law under Section 100 of the Code of Civil Procedure."
18. .............. If the appellants' arguments were to prevail, the findings of fact based upon an entirely erroneous appreciation of facts and by overlooking material evidence would necessarily have to remain and bind the parties, thereby causing injustice. It is precisely for such reasons that the High Courts are empowered to exercise limited factual review under Section 103 CPC. However, that such power could be exercised cannot be doubted. The impugned judgment does not expressly refer to that provision. In the circumstances of the case, it is evident that the High Court exercised the power in the light of that provision. ........."
(Emphasis supplied)
32. Before proceeding to scrutinize the judgments of the Courts below on the principles indicated, by which evidence should be evaluated in the face of a plea of non est factum by an illiterate woman executing a document, the decision of this Court in Ramesh Chand (supra) relied upon by Mr. Kesari to say that burden of proof would not shift upon the beneficiary of the document, requires consideration. This Court in Ramesh Chand was concerned about a plea relating to burden of proof being shifted upon the defendant, on account of the plaintiff's illiteracy, where the plaintiff challenged his deed on the ground of fraud. This Court neither considered the issue of shifting of burden upon the other side in the context of a plea of non est factum by an illiterate woman, who was the executant, nor decided anything in relation to the aforesaid principle. For one, the plaintiff in Ramesh Chand was a man, who, though illiterate, may have been subject to a slight variation regarding reversal of burden, even if he had pleaded non est factum. But more than that non est factum was never pleaded or considered. It was a plea of fraud that was raised and in the context of plea of fraud, it was held by my esteemed Brother Vivek Agarwal, J. that burden of proof would not shift to the defendant merely on account of the plaintiff's illiteracy. The decision in Ramesh Chand is, therefore, clearly distinguishable on principle and has no application here.
33. The Lower Appellate Court in its judgment has taken note of the principle with reference to authority, that given the illiteracy of the two defendants, burden would lie on the plaintiff to establish affirmatively that the transaction embodied in the suit agreement was a conscious act of the defendants, once they have taken a plea that they never understood its contents or nature. Broadly, it must be remarked that the Lower Appellate Court has rightly understood the principle, by which the case of parties and the evidence would have to be approached. The Lower Appellate Court has then recorded findings based on circumstances to conclude that the suit agreement does not appear to embody a conscious and well understood transaction by the defendants. In elaborate but not too prolix a detail, the Lower Appellate Court has enumerated those circumstances. It has been held that there is no evidence on record to show that the defendants would be willing to sell the suit property. The reason to enter into the transaction, disclosed in the suit agreement, is household affairs, liquidation of loan and the minor's education, but there is no evidence on record to show that there was a loan to liquidate or any such child undergoing education of a kind that may involve usual expenditure that would necessitate a sale of the suit property. It has been held that the cause to enter the transaction, as disclosed in the suit agreement, is not at all countenanced by the evidence on record.
34. It has then been held by the Lower Appellate Court that the sale deed by Kewla Prasad in favour of the two defendants was executed on 29.05.1986. This remark is followed by some discussion about the plausible time when the document would be returned after registration and a note of the fact that there is no evidence to show that the defendants' name had been mutated in the revenue records by the relevant time. These remarks are followed by an observation that it is not the intention of the Court (Lower Appellate Court) that without mutation in their favour, the defendants could not dispose of their interest, but the fact has been noted to ascertain that what was the crashing urgency that without waiting for a mutation based on the deed of Kewla Prasad and without the original deed being handed over to the vendees within a week or two, the defendants would enter into a transaction for sale. It has then been opined by the Lower Appellate Court that these facts indicate that Kewla Prasad's sale deed in favour of the defendants led to a dispute in the family of the kind pleaded in the written statement and that taking advantage thereof, the defendants' relatives brought about a situation that impelled them to execute an agreement to sell of the kind pleaded in the written statement.
35. Now, it must be remarked that the agreement to sell pleaded in the written statement by the defendants is one in favour of Daya Shankar, Shiv Mohan's son, who had been left out of the disposition made by Kewla Prasad. The Lower Appellate Court has then proceeded on to hold that a time period of two years for the execution of the sale deed after paying a sum of Rs.35,000/- out of a settled sale consideration of Rs.60,000/- seems too long in the circumstances, because in the time period of two years, the prices would go up. It has been remarked that the transaction could be supported on ground of an urgent need of the defendants, but about that, there is no evidence.
36. The Lower Appellate Court has then recorded a most decisive finding based on circumstances and says that the circumstances do not support why within a very short period of time, after execution of the sale deed by Kewla Prasad in favour of the defendants, the defendants would execute the suit agreement in the plaintiff's favour. There is a finding also recorded that the source or the bank account, wherefrom the sum of Rs.35,000/- was drawn not being explained, does not inspire much confidence. The last finding that is recorded is one that converges on the disability of the two defendants, arising from their illiteracy. It has been remarked that both the defendants are illiterate women and have their husbands and other members in the family. On the date of the transaction, Smt. Sukhdei's husband, Shiv Mohan, who is literate, was not invited to witness the suit agreement. Also, no receipt for the money received was executed in Shiv Mohan's presence. It has been inferred that these circumstances show that no member of the defendants' family, who could understand the contents and the nature of the suit agreement, was associated with the transaction, leading to the suit agreement. It is on the basis of all these circumstances that the Lower Appellate Court has held that the suit agreement was never executed and no consideration passed hands. The findings clearly lead to an inference that the Lower Appellate Court was not satisfied that the defendants at all understood the nature of the transaction or the contents of the suit agreement, and therefore, held it to be not their deed. This is precisely the result of the success of a plea of non est factum. The Lower Appellate Court has apparently placed burden of proof on the plaintiff's shoulder to affirmatively prove that the suit agreement was understood about its contents and the nature of the transaction by the two illiterate and rustic women, who are the defendants. The Lower Appellate Court did not find it to be discharged successfully by the plaintiff and in reaching that conclusion, the Lower Appellate Court has relied on very relevant evidence.
37. Within the limitations of the jurisdiction under Section 100 CPC, there is no reason for this Court to take a different view of the evidence than that taken by the Lower Appellate Court. Of course, to add to the line of reasoning of the Lower Appellate Court, particularly, in answer to the very elaborate and erudite submissions of Mr. Kesari, it must be remarked that the family members, who were present around the place at the time when the transaction was entered into, are the three brothers of Shiv Mohan, who had caused one of his sons, Daya Shankar to rebel against his grandfather's disposition made in favour of two of his brothers. If the said relatives were around the place when the suit agreement was executed, the two defendants, who are illiterate and rustic women, could hardly expect any guidance or help.
38. Here, it must also be noticed that much emphasis has been placed by Mr. Kesari upon the additional documents admitted to record, particularly, the three sale deeds by defendant no.1, Rajdei dated 30.05.1997, 30.06.2010, 22.07.2011. The suggestion, that has strongly come from the learned Counsel for the plaintiff, is that the tenor of the document show that Rajdei, in entering into transactions relating to sale of property, established that she is not a woman unacquainted with the ways of the world, though she may be illiterate. It must be remarked that for one, the sale deeds relied upon by the learned Counsel for the plaintiff are of a much later date after the cause of action involved here arose. The earliest of the three sale deeds is of the year 1997 and the last is one of the year 2012. The one in between the two is of the year 2010. The suit agreement here dates back to the year 1986. Therefore, between the earliest of the three sale deeds relied upon by the plaintiff to show Rajdei's prowess in understanding and handling worldly affairs and property matters, there is a lapse of eleven years, a long time in a human's short life. Humans by nature, whether literate or illiterate, generally get better acquainted with worldly matters as they mature. There could, of course, be exceptions or classes or communities where this may not happen. In contemporary times, exposures of even illiterate persons to many worldly matters and their knowledge about life has undergone unprecedented change, but that would not work backwards in time across a decade and a year for an illiterate and rustic woman, who executed the suit agreement to be accepted as wordly wise.
39. Quite apart, all this is based on the assumption that Rajdei, over time, has become better acquainted with worldly matters. It is not necessarily so. It is quite possible that the three sale deeds, executed in the years 1997, 2010 and 2012, have been executed by Rajdei with the aid and assistance of her husband, Uma Shankar or some other member of the family, who enjoyed her confidence and had her best interest at heart. These are issues, indeed, of evidence, which, notwithstanding the admission of the additional documents, ought not to be probed any further by this Court.
40. Be that as it may, as already said, the Lower Appellate Court has taken a logical view of the evidence on record, applying the principle correctly to place burden of proof upon the plaintiff. In the circumstances, substantial question No. (V) is answered in the affirmative, holding that in the case of an illiterate and rustic woman, who raises a plea of non est factum, the burden of proof is reversed and lies on the party, who seeks to take advantage of the document.
41. So far as substantial question of law nos. (ii) and (VI) are concerned, it is submitted by Mr. Gupta that given the plea of non est factum that is involved, both these substantial questions, do not arise for consideration in this appeal. Mr. Kesari, on the other hand, says that they do and are required to be answered. Learned Counsel for both parties have been heard on the said questions, including the issue whether they are at all involved.
42. This Court is of opinion that both the aforesaid questions do not really arise. The reason is that the case here is not based on a case of the document being vitiated by fraud and misrepresentation. As such, it is a case based on a different plea and that is non est factum. There is established authority noticed in Mahendra Singh that clearly distinguishes a plea of non est factum from a plea of fraud and misrepresentation. The law governing proof of the plea of fraud and misrepresentation does not apply to a plea of non est factum. It certainly does not apply to the case of an illiterate and rustic woman, where the burden of proof, in the face of a plea of non est factum is placed on the party, who claims under a document from her. It is for this reason that these questions do not at all arise. Both the questions Nos. (ii) and (VI) are not involved in this appeal and are not required to be answered.
43. So far as substantial question of law No. (iv) is concerned, learned Counsel for the plaintiff has emphasized its importance and advanced some submissions. The learned Counsel for the defendants, on the other hand, says that this question is hardly a substantial question of law and is not required to be decided, for the substance of it, would be well taken care of by the answer to substantial question of law No. (i).
44. This Court is inclined to agree with the learned Counsel for the defendants for the reason that substantial question of law No. (iv) runs into too many disjunct details, rendering it an awkward exercise to answer. Also, on the terms of it, the Court may be unnecessarily invited to venture into the prohibited field of a purely factual evaluation of evidence, unrelated to any principle, that we have dealt with here may deal with in the course of answering this question. Quite apart, the substance of the question is entirely taken care of by substantial question of law No. (i). Thus, this Court may safely conclude that substantial question of law No. (iv) is not involved in the present appeal and not required to be answered for the purpose of its effective disposition.
45. Now, turning attention to substantial question of law No. (i), it must be said at once that in view of our answer to substantial question of law No. (V), it does not require any elucidation that the Lower Appellate Court has not proceeded to record findings on irrelevant considerations. It has been held in answer to question No. (V) that the Lower Appellate Court has rightly applied the principle about reversal of burden in the face of a plea of non est factum raised by the defendants, who are both illiterate and rustic women. What, therefore, still requires to be evaluated is whether the Lower Appellate Court, in adopting an approach that this Court has countenanced, has effectively and validly reversed findings to the contrary recorded by the Trial Court. This would also charge this Court with the task of ascertaining whether the Trial Court at all considered the principle, by which the issues arising between parties had to be judged, and if it has, whether to the facts and evidence, that principle has been correctly applied.
46. Issue No. 3 framed by the Trial Court has been extracted hereinabove and paraphrased. It says, whether the suit agreement is one that is vitiated by the defendants' fraud in procuring it. This issue has been answered with reference to findings recorded in relation to issue No.1. But, in clear words, the principle that the Trial Court applied, is expressed in the following words:
"But, as discussed under issue No.1, the defendant failed to establish any fraud or misrepresentation."
47. While recording findings on issue No.1, which is the principal issue about the fact whether the plaintiff and the defendants entered into the suit agreement, with the defendants taking the earnest of Rs.35,000/-, the principle that the Trial Court has applied, is evident from these findings:
"In the above circumstances in my opinion when the agreement is admitted and registered the prima-facie presumption lies in favour of plaintiff and heavy burden lies on the defendants to prove that the agreement has been obtained by fraud and misrepresentation. The defendant failed to show any circumstances, under which, it can be said that any fraud and misrepresentation has been played on the defendant. By the statement of D.W.1, Raj Dayee, who is the defendant herself, it is clear that the defendant no.1, Raj Dayee and defendant no.3, Sukh Dayee, who was representing as guardian to minor; defendant no.2 went to the Office of Sub-registrar, Meja, in absence of any male member. According to D.W.1 her husband Uma Shankar was in service outside of State and her father-in-law Shiv Mohan was away in Mirzapur at that time. Accordingly it is clear that the defendants nos.1 and 3 chose herself to visit the Tehsil Head Quarter Sub-Registrar, Meja, in absence of her husband and her father-in-law knowingly that they are going to execute an agreement so they cannot plead that they are ignorant and the plaintiff has taken undue advantage for their illiteracy and ignorance."
48. It is clear from the Trial Court's approach that the learned Judge had in mind fraud and misrepresentation as the defendants' pleas to assess whether the transaction is vitiated or valid. No doubt, fraud and misrepresentation are pleas that have to be pleaded with all necessary particulars and strictly proved. The burden to prove these pleas is also generally upon the person who sets up the plea. The same does not hold true in case of non est factum when raised by an illiterate and rustic woman. A reading of the Trial Court's findings shows that the Trial Court never had in mind the distinction between a plea of non est factum on one hand and fraud and misrepresentation on the other; particularly in the context of an illiterate and rustic woman vis-à-vis the principle of reversal of burden. The Lower Appellate Court has also not spoken about non est factum in express words. But, throughout the length and breadth of the impugned judgment, one finds the conscious application of the principle, obliging the party, who happens to be the plaintiff here, to effectively prove that the defendants, who are illiterate and rustic woman, understood the contents and the nature of the transaction that the suit agreement embodied.
49. The Lower Appellate Court, therefore, on an application of the right principle of law to judge the rights of parties, including reversal of burden, in the opinion of this Court, has, validly and effectively, reversed the Trial Court. It must also be remarked that in view of the wholesome and trite application of the principle, by which the rights of parties have to be judged, it is not a case where it may be said, even remotely, that the Lower Appellate Court has proceeded to decide a case culled by itself or what is popularly called a third case. In the considered opinion of this Court, the Lower Appellate Court has decided the case of parties within the precise parameters of the pleadings and evidence.
50. In the opinion of this Court, therefore, substantial question of law No. (i) must be answered in the negative.
51. In the result, this appeal fails and is dismissed with costs to the defendants in all Courts.
52. Let a decree be drawn up accordingly.
Order Date :- 4.2.2022 Anoop