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TMI Blog1962 (4) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... 1935, believing it to be a power of attorney, that subsequently the came to know that it was a maintenance deed continuing false recitals to the effect that there was no separation and that the property was joint family property. They also alleged in the plaint that the deed in question was never read out to them, that the scribe and the attesting witnesses were partisans of the first defendant. It was also alleged that the document was always in the custody of the firs defendant, that the plaintiff and her mother-in-law, till the latter's death, were getting the income from the property as they were getting before the execution of the said documents and that they came to know of the fraud only in 1355 fasli, when the first defendant began to interfere with the possession and occupation of the property by the plaintiff and disclosed to several people that she had only as right to maintenance and thereafter when she got the document read over to her and discovered the fraud. With those allegations, among others, the plaintiff filed a suit in the Court of the Munsif, Muzaffarpur, for the following reliefs : On a consideration of the aforesaid facts and also on adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly on the defendant. In the words of 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. He considered the evidence from that standpoint and held that the plaintiff had not established her case; and on that finding, he dismissed the suit. 8. Mr. D. P. Singh, learned counsel for the appellant, raised before us two contentions, namely, (1) the learned Judge of the High Court was wrong on the question of burden of proof; and (2) the learned Munsif and the learned Subordinate Judge had not only thrown the burden of proof rightly on the defendant, but they had also given their findings on the entire evidence, and therefore the burden of proof became immaterial and the findings of fact given by the said courts were binding on the High Court under section 100 of the Code of Civil Procedure. 9. Mr. Sarjoo Prasad, learned counsel for the respondents, on the other hands, contends that the finding on the question of separation was halting and was clearly illegal, not ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are separate matters . 12. It is, therefore, manifest that the rule evolved for the protection of pardhanashin ladies shall not be confused with other doctrines, such as fraud, duress and actual undue influence, which apply to all persons whether they be pardhanashin ladies or not. 13. The next question is what is the scope and extent of the protection. In Geresh Chunder Lahoree v. Mst. Bhuggobutty Debia [1870] 13 M.I.A. 419. the Privy Council held that as regard documents taken from pardhanashin women the court has to ascertain that the party executing them had 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 pardhanashin woman. In Kali Baksh v. Ram Gopal [1913] 41 I.A. 23, the Privy Council defined the scope of the burden of a person who seeks to sustain a document to which a pardhanashin lady was a party in the following words : In the first place, the lady was a pardhanashin lady, and the law throws round her a special cloak of protection. It demands that the burden of proof shall in such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tood it, but also by other evidence, direct and circumstantial. 16. If that be the law, a perusal of the judgments of the three courts demonstrates that while the learned Munsif and the learned Subordinate Judge approached the case from a correct perspective, the High Court misled itself by a wrong approach. The relevant issue we have already extracted shows that the burden was thrown upon the defendant. The first two courts approached the evidence from that standpoint and gave a concurrent finding that it had not been established that the plaintiff executed the document after understanding the nature of the transaction. Apart from the burden of proof, also on the facts found they came to the same conclusion. The High Court, having wrongly held that the approach of the two courts was not correct and having wrongly thrown the burden upon the plaintiff considered the evidence afresh and set aside that finding. As the two courts approached the evidence from a correct perspective and gave a concurrent finding of fact, the High Court had no jurisdiction to interfere with the said finding. 17. Learned counsel for the respondents contends that on one of the crucial findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not inconsistent with partition. The he discussed the oral evidence. He had considered the evidence of five witnesses examined on behalf of the plaintiff and of seven witnesses examined on behalf of the defendants. He also noticed pieces of circumstantial evidence. After considering the entire evidence, oral, documentary and circumstantial, he came to the following conclusion : Although the oral evidence on both the sides on the point of jointness and separation is not satisfactory but from the circumstances adduced from the facts of the case I am convinced that Rameshwar died in states of separation from Jangbahadur. 19. It cannot be said from the said finding that he rejected the oral evidence. It may be that the oral evidence adduced on behalf of the plaintiff was not as satisfactory as it should be, but he preferred that evidence, which supported partition, in view of the circumstances found on the evidence. The finding, whether it is correct or not, is certainly a finding of fact an it cannot be said that it is not based on evidence. 20. Now coming to the appellate court, the learned Subordinate Judge reviewed the entire evidence, oral, documentary, circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impression that it was a power of attorney. The finding is one of fact and was based upon the following relevant facts : (1) The plaintiff and her mother-in-law were pardanashin and illiterate women - one of them was old and the other was middle-aged. (2) They has full confidence in he first defendant. (3) Babu Ramnath Singh, who wrote the names on the document was not proved to be the brother of the plaintiff. (4) The document was in the custody of the defendant. (5) The plaintiff and her mother-in-law were in enjoyment of the property as they were enjoying it even before the execution of the document. (6) The defendant had not examined either Babu Ramnath Singh or other important witnesses who could have proved the fact that the plaintiff and her mother-in-law had the knowledge of the nature of the document. (7) The defendant managed to get this document by fraud to facilitate mutation of the property in his name. And (8) the plaintiff gave acceptable evidence in support of her case. The finding of the both the courts is supported by evidence, and there is no permissible ground for interference with it in second appeal. 23. For the aforesaid reasons, we find that the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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