Mst. Kharbuja Kuer vs Jangbahadur Rai

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 522 of 1959

Decision Date: 09/04/1962

Coram: A.K. Sarkar, J.R. Mudholkar, Subba Rao

In this matter the parties were Mst Kharbuja Kuer as petitioner and Jangbahadur Rai as respondent. The case was decided by the Supreme Court of India on 9 April 1962. The Bench comprised Justice A K Sarkar, Justice J R Mudholkar and Justice Subbarao K. The official citation of the decision is reported as 1963 AIR 1203 and also appears in the Supreme Court Reports Supplement (1) 456. The judgment is referenced in later reports as RF 1981 SC 707 (10). The dispute involved a Pardanashin lady, the execution of a deed, questions of binding effect, the maturity of the deed, and the allocation of the burden of proof.

The factual background recorded in the headnote stated that the husband of the appellant, designated as R, had separated from his uncle in the year 1924. After the death of R, the respondent obtained a maintenance deed that was executed by the appellant. The deed contained recitals asserting that there had been no separation between R and the respondent. The appellant subsequently instituted a suit seeking a declaration of her title to the property and also contended that the deed, having been obtained through fraud, should not bind her. The trial court ruled in favour of the appellant, holding that R and the respondent had indeed separated, that the appellant was an ignorant Pardanashin lady, and that she had not executed the deed with an understanding of its contents. On appeal the first appellate court affirmed both the factual findings and the decree of the trial court. When the matter reached the High Court on a second appeal, that court reversed the earlier findings on the ground that the burden of proving fraud rested upon the appellant.

The appellant argued before the Supreme Court that the High Court erred both in its assessment of the burden of proof and in exceeding its jurisdiction by interfering with the factual findings of the lower courts. The Supreme Court held that the High Court was not justified in revisiting the findings of fact established by the trial court and the first appellate court. The Court further observed that the High Court had incorrectly shifted the burden of proof onto the appellant. The Court explained that the burden of proof always lies on the party who seeks to sustain a transaction entered into with a Pardanashin lady; that party must demonstrate that the document was executed by her after she clearly understood the nature of the transaction. Such proof must show not only the physical act of signing but also the mental assent of the lady. The Court clarified that the burden may be discharged by establishing that the document was explained to her and that she comprehended it, and that direct or circumstantial evidence may also satisfy this requirement. In reaching its conclusion the Court referred to earlier authorities, including Farid‑Un‑Nisa v Mukhtar Ahmed (1925) LR 52 IA 342, Geresh Chunder Lahoree v Mst Bhuggobutty Debia (1870) 13 MIA 419, Kali Baksh v Ram Gopal (1913) 41 IA 23 and Jagadish Chandra v Debnath (1940) AIR 134. The judgment was delivered by Justice Subbarao, who noted that the appeal was presented by special leave against the judgment and decree dated 2 December 1957 of the Patna High Court in Civil Appeal No 522 of 1959, and that counsel for the appellant and respondents had appeared before the Court.

The Court explained that the factual background giving rise to this appeal could be clarified by describing the family relationships involved. Ramlal Rai was the father of Jamuna Rai, who was married to Rameshwar Rai, now deceased. Rameshwar Rai and Jamuna Rai had a daughter, Mst. Kharbuja Kuer, who is the plaintiff in this proceeding. The plaintiff’s father‑in‑law, Jangbahadur Rai, is identified as Defendant 1. The plaintiff’s paternal side also included several brothers: Jugeshar Rai, Rambirchh Rai, and Mahessar Rai, all of whom are deceased. The plaintiff’s claim is founded on an alleged partition of the family property that took place around 1924, after which Jangbahadur Rai obtained exclusive possession of the portion allotted to him. Jangbahadur Rai died in 1930, and thereafter the plaintiff together with her mother‑in‑law continued to occupy the same property. The mother‑in‑law died in 1938. At some point the plaintiff and her mother‑in‑law were requested by the first defendant to execute a power of attorney in his favour. On the basis that they were illiterate women, they signed a document on 24‑8‑1935 believing it to be a power of attorney. Later they discovered that the document was, in fact, a deed of maintenance containing false statements that asserted there had been no separation between the parties and that the land remained joint family property. The plaintiff further alleged that the deed was never read out to them, that the person who prepared the document and the attesting witnesses were allied with the first defendant, and that the original deed was kept in the possession of the first defendant. Until the mother‑in‑law’s death, both she and the plaintiff continued to receive the income from the property as they had before the execution of the deed. The plaintiff claims that she only became aware of the deception in the Fasli year 1355, when the first defendant began to interfere with her possession and occupation of the property and publicly asserted that she was entitled only to maintenance. It was at that time that the deed was finally read to her, leading her to realize the fraud. On the basis of these allegations, the plaintiff instituted suit before the Munsif Court at Muzaffarpur, seeking a declaration that the deed of maintenance was fraudulent and therefore not binding upon her, along with a declaration of her title to the suit property. Although the reliefs claimed are set out in detail, they essentially amount to a declaration of ownership of the property and a finding that the maintenance deed, having been obtained by fraud, cannot be enforced. The first defendant denied all the allegations raised in the plaint and contended that the deed of maintenance had been read over to the plaintiff and her mother‑in‑law, that it was properly explained, and that a relative, Babu Ramnath Singh, who is the plaintiff’s brother, was present at the execution and had signed on her behalf. He also denied any involvement in fraud. The pleadings therefore framed several issues, including whether a separation between Rameshwar Rai and Defendant 1 had occurred in the Asardh month of Fasli 1334 (1927), whether the document dated 24‑8‑1935 was legal and valid, and whether it had been read to the plaintiff who executed it with full knowledge of its contents, and finally whether the plaintiff was entitled to the reliefs she sought. The Court noted that the burden of proving the alleged separation rested on the plaintiff, while the burden of showing that the document was read and understood by the plaintiff rested on the defendant. After considering all the evidence, the learned Munsif made findings on the first two issues, concluding that Rameshwar Rai had died in...

The Court recorded that the plaintiff’s mother‑in‑law was present at the time the deed was executed and that Babu Ramnath Singh, who was the brother of the plaintiff, also attended the execution and affixed his signature on behalf of the plaintiff. Babu Ramnath Singh denied that he had perpetrated any fraud. The pleadings framed several issues for determination. Issue No. 3 asked whether the allegation of separation between Rameshwar Rai and Defendant No. 1 in the month of Asardh 1334 Fs. (1927) was correct. Issue No. 4 inquired whether the document dated 24‑8‑1935 was legal and valid, and whether it had been read to the plaintiff and executed by her with full knowledge of its contents. Issue No. 5 sought a determination of whether the plaintiffs were entitled to the reliefs claimed. From these issues it was apparent that the burden of proving the alleged separation rested on the plaintiff, whereas the burden of proving that the document had been read to the plaintiff and that she had executed it with full understanding was placed on the defendant.

After considering the entire evidence, the learned Munsif ruled on Issues 3 and 4 that Rameshwar Rai had died while separated from Jangbahadur, that the plaintiff and her mother‑in‑law were ignorant “pardhanashin” ladies who placed complete confidence in the first defendant, and that the document identified as Exhibit C had not been read to the plaintiff and that she had not executed it after comprehending its contents. On the basis of these findings, the suit was decreed in accordance with the prayer in the plaint. On appeal, the learned Subordinate Judge re‑examined the evidence, accepted the two findings of the Munsif, and confirmed the decree. However, on a second appeal, Imam J. set aside the concurrent findings of the two lower courts, holding that they had wrongly placed the burden of proof on the defendant. Quoting the learned Judge, “it was the duty of the plaintiff to prove that there was fraud committed and as that had not been established the question whether the document had been read over and explained to the plaintiff, in my opinion, in the circumstances, does not arise.” Viewing the evidence from that perspective, Imam J. concluded that the plaintiff had failed to establish her case and consequently dismissed the suit. The appellant’s counsel, D. P. Singh, argued before the Court that the High Court judge erred on the question of burden of proof and maintained that the Munsif and Subordinate Judge had correctly placed the burden on the defendant, had given findings on the entire evidence, and therefore the findings of fact should bind the High Court under section 100 of the Code of Civil Procedure. The respondent’s counsel, Sarjoo Prasad, contended that the finding on the question of separation was halting and

It was held that the judgment of the learned Subordinate Judge was clearly illegal because it had not been based on any oral or documentary evidence. Although the initial burden to prove that the document had been read over and explained to the widow % was placed on the defendant, the evidence and the surrounding circumstances of the case had plainly discharged that burden. Established legal principle dictates that the High Court lacks jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact. In the present matter, both the learned Munsif and, on appeal, the learned Subordinate Judge had concurrently found that the two widows had placed their thumb marks on the document without understanding its true import. Judge Imam, J., in the second appeal, reversed those findings on the basis that they were vitiated by an erroneous view of the law concerning the burden of proof. The judgment, if it may be described so, contains propositions that appear contradictory. After reviewing the relevant case law, the learned Judge concluded that the duty to prove that fraud had been committed rested with the plaintiff, and, since fraud had not been established, the question of whether the document had been read over and explained to the plaintiff, in his opinion, did not arise. This conclusion was deemed by the Court to be plainly wrong and contrary to the principles laid down by the Privy Council in a series of decisions. In India, pardahnashin women have been afforded special protection because of the social conditions of the time; they are presumed to possess an imperfect knowledge of the world, as the pardah system effectively excludes them from ordinary social interaction and communion with the outside world.

Lord Sumner, referring to the case of Farid‑Un‑Nisa v. Mukhtar Ahmad (1), traced the origin of the custom and set out the principle on which the presumption is based. He 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.” He further pointed out that “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 must not be confused with other doctrines such as fraud, duress and actual undue influence, which apply to all persons, whether pardahnashin or not. The next question is the scope and extent of that protection. In Geresh Chunder Lahoree v. Mst. Bhuggobutty Debia (1) the Privy Council held that, regarding documents taken from pardahnashin women, the court must ascertain that the party executing them had been

The Court explained that a pardanashin woman must be treated as a free agent who had been properly informed about the document she signed, because the usual presumption that a signatory understands the instrument does not apply to her. The Court cited the decision in Kali Baksh v. Ram Gopal (2) in which the Privy Council described the burden resting on the party seeking to rely on a deed executed by a pardanashin lady. The Privy Council’s words were reproduced: “In the first place, the lady was a pardanashin 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 Court noted that this broad formulation had been affirmed in later cases, although the method of discharging the burden had been refined. The Court referred to Farid‑Un‑Nisa v. Mukhtar Ahmad (a), where it was held that a mere declaration by the settlor that she did not understand the transaction was not conclusive. The Court stated that the inquiry must consider the settlor’s proven personality, the nature of the settlement, the circumstances of execution, and the entire history of the parties to determine whether the deed was the free and intelligent act of the settlor. If the answer is affirmative, the party relying on the deed has discharged the onus that rests upon them. While reaffirming that the burden lay on the person who seeks to sustain a document executed by a pardanashin lady, the Court clarified that proving the deed had been explained to her was not the only way to meet the burden. Other evidence and surrounding circumstances could also show that she voluntarily executed the document. The Court repeated that this view had been endorsed by the Judicial Committee through Sir George Rankin in Jagadish Chandra v. Debnath (1) and that further citation was unnecessary because the legal position was well settled. In summary, the Court held that the burden of proof always rested on the party seeking to enforce a transaction with a pardanashin lady, and that party had to establish that the document was executed by her after she clearly understood the nature of the transaction, demonstrating both her physical and mental assent.

In this case, the Court explained that the burden of proof required showing that the woman signed the document not only with her physical act but also with a clear understanding of the transaction, and that this burden could be discharged by evidence that the deed had been explained to her and that she comprehended it, as well as by any other direct or circumstantial proof. The Court observed that a review of the judgments of the three lower courts revealed that the learned Munsif and the learned Subordinate Judge had approached the matter correctly, whereas the High Court had adopted an erroneous approach. The relevant issue, as previously identified, placed the burden on the defendant, and the first two courts examined the evidence from that standpoint and concurrently concluded that the plaintiff had not demonstrated execution of the document after understanding its nature. Apart from the burden of proof, the factual findings of those courts led to the same conclusion. The High Court, however, mistakenly held that the approach of the two lower courts was incorrect, shifted the burden onto the plaintiff, reassessed the evidence afresh, and overturned their finding. Because the Munsif and the Subordinate Judge had correctly applied the legal standard and arrived at a unified factual finding, the High Court possessed no jurisdiction to disturb that determination. Counsel for the respondents argued that one of the pivotal findings influencing the first two courts—the finding regarding the partition in the family—was not supported by evidence and that both parties had agreed that this question was irrelevant to the principal issue raised in the suit. He further contended that the learned Munsif had rightly placed the burden of proving separation on the plaintiff, had found no admissible oral evidence, and had held that the documentary material presented was insufficient to sustain a claim of partition, thereby should have concluded that the presumption under Hindu law of a joint family remained unrebutted. It was indeed true that, before the learned Munsif, the counsel appearing for the parties had suggested that a finding on issue number three was unnecessary and that the suit could be disposed of without such a finding. Nevertheless, the learned Munsif correctly rejected that suggestion, held that the issue was framed in the pleadings, that all relevant evidence had been produced, and that it was proper to render a finding on it. The learned Subordinate Judge further emphasized that the central question was not the matter of jointness or separation but the validity and genuineness of the deed itself, observing that the issue of separation merely formed a link in the chain of reasoning required to assess the document’s validity, a statement the Court found unobjectionable.

The question of partition within the family was identified as a circumstance that could significantly affect the likelihood that the widows had executed a deed stating that there was no partition and that they possessed no absolute interest in the property in question. The Court then turned to the evidence presented and rejected the submission advanced by counsel for the respondents that the case lacked any material capable of overturning the Hindu law presumption that a family is joint. The learned Munsif observed that the plaintiff had produced no documentary proof of separation; by this observation he meant that no written instrument establishing a partition existed, a point he clarified in the following sentence when he explained that the alleged partition was asserted to have been effected orally. He thereafter examined the documents filed by the defendants in great detail and concluded that those documents did not conflict with the existence of a partition. After this documentary review, the Munsif proceeded to analyse the oral evidence. He recorded that five witnesses had been examined on behalf of the plaintiff and seven witnesses on behalf of the defendants, and he also took note of various pieces of circumstantial evidence. Having considered the totality of oral, documentary and circumstantial material, the Munsif arrived at the conclusion that “Although the oral evidence on both sides on the point of jointness and separation is not satisfactory, from the circumstances adduced from the facts of the case I am convinced that Remeshwar died in a state of separation from Jangbahadur.” This finding did not amount to a rejection of the oral testimony; rather, it indicated that the plaintiff’s oral evidence, while perhaps not as persuasive as desired, was given greater weight because it supported the inference of partition when viewed against the surrounding circumstances. The Munsif characterized his determination as a factual finding grounded in the evidence, and he affirmed that it was not a conclusion drawn without evidentiary basis.

When the appellate stage was reached, the learned Subordinate Judge also reviewed the complete body of evidence—oral, documentary and circumstantial—and formulated his own findings. He stated: “In view of the facts and the circumstances narrated above, while the probabilities are that there was a disruption in the joint family of Rameshwar and Jangbahadur as alleged by the plaintiff, the defendants have failed to prove beyond all doubts that the family continued to be joint at the time of Rameshwar’s death, or that they came into exclusive possession of the properties left behind by him. Judging Exhibit C, in this light, we find that if the fact of separation between Rameshwar and Jangbahadur as alleged by the plaintiff be accepted to be true, as has been shown above, then the fraud in the execution of this document is patent, and no discussion is required to declare it as a forged and fraudulent document.” The Court acknowledged that the Subordinate Judge’s finding could have been articulated with greater explicitness, but it held that such a stylistic shortcoming did not diminish the substantive force of the finding, which remained a definitive factual determination based on the evidence on record.

In the first part of the finding, the learned Subordinate Judge observed that, after reviewing the facts and circumstances previously discussed, the burden of proof shifted to the first defendant. The defendant, however, failed to produce acceptable evidence that would dispel the circumstances indicating a lack of jointness in the family. In the second part of the same finding, the Judge expressly concluded that a partition had occurred within the family, thereby making a second factual finding. The High Court did not contest the correctness of either of these findings made by the learned Munsif and the Subordinate Judge. Instead, the High Court simply ignored them, asserting that it was not the duty of the lower appellate court to deal with that question. The present Court is unable to accept the observations of the High Court Judge because, in our view, the findings identified by the Munsif arose on the pleadings and, as the Subordinate Judge noted, they directly affected the principal question to be adjudicated. Consequently, those findings must be regarded as binding on the High Court. Even assuming that the High Court had disregarded those findings, there existed sufficient material to sustain the conclusions reached by the first two courts.

Both the Munsif and the Subordinate Judge found that the first defendant, upon whom the burden of proof rested, did not establish that the document in dispute was executed by the plaintiff with full knowledge of its contents. Moreover, they determined that the plaintiff and her mother‑in‑law had placed their thumb marks on the document under the belief that it was a power of attorney. This factual finding was based on several relevant circumstances: (1) the plaintiff and her mother‑in‑law were pardanashin and illiterate women, one being elderly and the other middle‑aged; (2) they placed complete confidence in the first defendant; (3) it was not proven that Babu Ramnath Singh, who wrote the names on the document, was the plaintiff’s brother; (4) the document remained in the defendant’s custody; (5) the plaintiff and her mother‑in‑law were already enjoying the property before the document’s execution; (6) the defendant failed to examine either Babu Ramnath Singh or other important witnesses who could have demonstrated the plaintiff’s and her mother‑in‑law’s knowledge of the document’s nature; (7) the defendant obtained the document through fraud in order to effect mutation of the property in his own name; and (8) the plaintiff produced acceptable evidence supporting her case. The findings of both lower courts are fully supported by the evidence, and there is no permissible ground for interference in this second appeal. Accordingly, the Court holds that the High Court Judge wrongly interfered with the concurrent factual findings arrived at by the first two courts.

After examining the matters that were raised on appeal, the Court concluded that the appellant’s case should succeed. Accordingly, the Court allowed the appeal and, in doing so, set aside the decree that had been issued by the High Court in the earlier proceedings. By overturning that decree, the Court restored the position of the parties to that which existed before the High Court’s order. The Court then entered a decree in favour of the appellant, thereby granting the relief that had been sought in the suit. In addition to granting the substantive relief, the Court ordered that the costs of the litigation be awarded throughout the entire course of the proceedings, requiring the adverse party to bear those expenses. The final operative part of the order reiterated that the appeal was allowed, confirming that the appellant’s request for relief had been fully granted by the Court.