Document Fragment View

Matching Fragments

8. There is no merit in the contention that the lower appellate court has carved out a new case and it was never pleaded that the plaintiff was not illiterate and Pardanashin lady. In para 16 of the plaint, it is clearly alleged that the plaintiff was illiterate and Pardanashin woman. In para 16 of the written statement, it is admitted that the plaintiff was illiterate woman. It was not admitted that she was Pardanashin lady. In the plaint, her age is shown to be 65 years. This was not denied though it has come in evidence that she was aged about 70 years. This minor difference does not render the deceased-plaintiff young lady on the date of execution of the sale-deed. Thus it is averred in the plaint that she was aged, illiterate and Pardanashin lady. It is also averred in the plaint that she had eye trouble on the date of the alleged execution of document and she was brought to Allahabad by Hakimuddin in connection with treatment. The lady who was going to execute sale-deeds was having eye trouble and as such she can be said to be physically infirm lady also for the purposes of fully understanding about the nature of the transaction.

13. The aforesaid protection is given to a lady who is not Pardanashin but is illiterate, weak and helpless. This protection cannot be restricted to the class of poor woman who is equally ignorant and is illiterate and is not Pardanashin. This Court in Parasnath Rai and others v. Tileshra Kuar, 1965 ALJ 1980, laid down as under:

"Rules regarding transactions by a 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. Old age, infirmity, ignorance, illiteracy, mental deficiency, inexperience and experience upon others, may by themselves create disabilities that may render the protection equally necessary. If, therefore, it is proved that a woman, although she is not a Pardanashin lady, suffers from the 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, where the plaintiff was illiterate and when she executed the deed in question she was not only more than 60 years old but was also hard of hearing and she was described by the defendants themselves as a foolish and rustic woman completely devoid of intelligence, and according to the finding of the lower appellate court she was correctly described as such, and besides the defendants stood in relation to her in a position of active confidence held that there could be no doubt that she was as much entitled to the protection of the law as a Pardanashin lady".

14. In Laxmi Narain and another v. Smt. Hubraja alias Barki, 1989 (7) LCD 284, it was again laid down by this Court that same rule of protection as applicable to the transaction entered into by Pardanashin woman applies to illiterate and ignorant woman. The cases in 1965 ALJ 1080 (supra) ; AIR 1963 SC 1203 (supra) ; 1988 ALJ 956 and AIR 1981 AH 222, were also referred in this case. It was further held in this case that burden of proof lies on a person who sets up the deed and relies upon it and he has to satisfy the court that the deed was explained to and was understood by the party executing it. On fact, the lower appellate court rightly held on the evidence on record that on 7.4.1960, the date of execution of the first sale deed, Smt. Sabbirunnisan was aged about 70 years and was illiterate lady having eye trouble. On these established facts. Sabbirunnisan was entitled to the protection which is normally afforded to a Pardanashin lady.

"The cases regarding Pardanashin ladles fall into two groups, namely, first, cases where the person who seeks to hold the lady to the terms of her deed is one who stood towards her in a fiduciary character or in some relation of personal confidence ; and secondly, cases where the person who seeks to enforce the deed was an absolute stranger and dealt with her at arm's length. In the former class of cases, the court will act with great caution and will presume confidence put and influence exerted ; in the latter class of cases, the court will require the confidence and influence to be proved intrinsically. Where the person who seeks to hold the lady to the terms of the deed stands towards her in a relation of personal confidence, a very heavy burden lies on those who rely on the document, heavier than what the law would ordinarily lay on a person who was a stranger to the Pardanashin lady and who was dealing with her at arm's length."