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TMI Blog1985 (9) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... ld execute a power-of-attorney in favour of appellant 2 to effectively look after her properties. The case of the deceased respondent Champa was that her late husband Gobardhan had three brothers, namely, Dhoi, Jagannath and Chakradhar, who were members of a joint family and the lands mentioned in schedules B, C and D formed parts of the schedule A lands which were the joint family properties of the brothers. Dhoi predeceased his father. Gobardhan and Chakradhar (husband of Gurubari, defendant 1) continued to live as members of a joint family and possessed the A schedule properties. On the deaths of her husband and Chakradhar survived by defendant 1 and Bhabani, his daughter, dissensions arose in the family and she (Champa) became separate although the properties were under the control and management of defendant 1 who got the same cultivated through her son-in-law Balaram. Champa took ill and appellant 2 approached her and took up her treatment. Taking advantage of this, he persuaded her to execute a power-of-attorney for effective management of her affairs and to look after her properties and ultimately in connivance with his own scribes and persons close to him, managed to get t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1966 have been held to be invalid and have been set aside. The plaintiff's title over the suit properties has been declared and it has been held that the deceased respondent Champa and defendant 1 were each entitled to eight-annas share out of Schedule 'A' properties. The trial Court has ordered that if there would be no amicable partition within a month, the plaintiff would pray for partition by depositing the fees of the survey knowing Commissioner. Accordingly a decree has been passed. The judgment and decree are assailed in this appeal by three of the defendants. 4. At the hearing, Mr. S. D. Das wanted to canvass a ground not taken earlier, viz., that the suit was barred by the law of limitation. Inviting our attention to Article 59, Limitation Act, that a suit to cancel or set aside an instrument would have to be instituted within three years from the time when the facts entitled the plaintiff to have the instrument cancelled or set aside first became known to the plaintiff and to a stray statement made by the deceased respondent Champa in her cross-examination that two to four days after the registration, she came to know that Benu had got deeds of gift and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show that the terms are fair and equitable and that she had been given independent advice in the matter. To charge such a lady upon an instrument alleged to have been executed by her, it must be shown by satisfactory evidence that the document had been explained to and understood by her. Where the person sets up the validity of a deed executed by a pardanashin or illiterate lady, the onus is upon him to prove that she had understood the nature and effect of her act. 8. The Judicial Committee of the Privy Council had observed and held in the case of Mt. Farid-un-nisav. Munshi Mukhtar Ahmad : The law of India contains well-known principles for the protection of persons, who transfer their property to their own disadvantage when they have not the usual means of fully understanding the nature and effect of what they are doing. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst her, or, as a matter of that, in order that it may be found by the Court that the documents were properly executed, the vendee must prove that the documents were read over and explained to the illiterate executant, who is a lady, and she knew the nature and character of the transactions while she became a willing party to the documents and particularly that she was aware of the acreage involved in the transactions. In our view, there is no justification as to why a rule applicable to pardanashin ladies on the ground of their ignorance and illiteracy should be restricted to that class only and should not also apply to the case of a poor lady who is equally ignorant and illiterate, but is not pardanashin, simply because she does not belong to that class, the object of the rule of law being to protect the weak and the helpless, the distressed and the down-trodden and it should not be restricted to a particular class or community. Even in the case of a lady who is outside the pardanashin class, it is for those who deal with her to establish that she had the capacity of understanding that she had been entering into the transactions voluntarily and with full knowledge and impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been discharged where it is not shown that the lady had any independent advice. 11. Much advantage is sought to be taken of the fact that Champa had admitted before the Sub-Registrar about the execution of the documents stating that the contents were correct. The fact, however, remains that she was then under the care of appellant 2 who had represented to her that she was executing a power-of-attorney in his favour so that he would look after the properties. As held by this Court in Bhikary Ram v. S. Hedait Mohammad Sahaji, merely because a lady says when questioned by the Sub-Registrar that the document is all right, it does not follow that she understood the terms of the same. Although Champa did make a statement before the Sub-Registrar that the documents were all right, immediately having come to know that fraud had been committed, she did raise words of protest, as would be clear from the evidence, 11A. The evidence of D.Ws. 1, 2 and 4 with regard-to the circumstances in which the deeds had been executed was discrepant, as rightly noticed by the learned Subordinate Judge in para 6 of the judgment. Appellant 3 deposing as D.W. 4 had testified that D.W. 3 had prepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sudan Das v. Smt. Narayani Bai as follows : ..........When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. In this connection, reference may usefully be made to W. C. Macdonald v. Fred Latimer AIR 1929 PC 15 18 where the Privy Council laid down that when there is a direct conflict between the oral evidence of the parties, and there is no documentary evidence that clearly affirms one view or contradicts the other, and there is no sufficient balance of improbability to displace the trial Court's findings as to the truth of the oral evidence, the appellate Court can interfere only on very clear proof of mistake by the trial Court. In Watt v. Thomas 1947 AC 484 it was observed: It is a cogent circumstance that a Judge of first instance, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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