Case: Mst. Kharbuja Kuer Vs. Jangbahadur Rai

question of separation or jointness thus only becomes a link in the chain to judge the validity or otherwise of the document, Ex. C". This statement of the learned Subordinate Judge is unobjectionable. The question of partition in the family was a circumstance which would have an important bearing on the question of probability of the widows executing a document admitting that there was no partition in the family and that they had no absolute interest in the said property.Now coming to the evidence, we cannot accept the argument of learned counsel for the respondents that there was no evidence in the case to rebut the presumption of Hindu law that a family is joint. The learned Munsif said that there was no documentary evidence on behalf of the plaintiff to prove separation; by that statement he meant that the partition was not effected by a written document, for the next sentence made it clear when he said that it was due to the fact of alleged oral partition. Then he considered the documents filed by the defendants in great detail and came to the conclusion that the said documents were 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."13. 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.14. Now coming to the appellate court, the learned Subordinate Judge reviewed the entire evidence, oral, documentary, circumstantial, and arrived at the following findings :"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 Rameshwars death, or that they came in exclusive possession of the properties left behind by him. Judging Ex. 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 not discussion is required to declare it as a forged and fraudulent document."15. It is true the finding could have been more explicit, but that does not detract from its finality. In the first part of the finding, the learned Subordinate Judge says in effect that, having regard to the facts and circumstances he had discussed earlier, the burden shifted to the first defendant, who did not adduce acceptable evidence to dislodge the circumstances against jointness. But in the second part of the finding he makes it clear that he had found that there was partition in the family. The finding is again a finding of fact. That a part, the High Court did not in any way question the correctness of the finding of the learned Munsif and the learned Subordinate Judge, but only ignored it on the ground that it was not the duty of the lower appellate court to deal with that question at all. We cannot appreciate the observations of the learned Judge of the High Court, for, in our view, that finding, as the learned Munsif pointed out, arose on the pleadings and, as the lower appellate court pointed out, had a direct impact on the main question to be decided in the case. We, therefore, hold that he said finding was binding upon the High Court.Even if that finding was ignored, there was sufficient material to sustain the finding of the first two courts. Both the courts fond that the first defendant, on whom the burden lay, not only did not establish that it was executed by the plaintiff with the knowledge of its contents, but that even apart from the burden of proof, that they also found that the plaintiff and her mother-in-law put their thumb marks on the document under the 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.16.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is settled law that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact. In the instant case the learned Munsif and, on appeal, the learned Subordinate Judge found concurrently that the two widows put their thumb marks without understanding the true import of the document. Imam, J., in second appeal reversed the said findings on the ground that they were vitiated by an erroneous view of the law in the matter of burden of proof. The judgment, if we may say so with respect, consists of propositions which appear to be contradictory. The learned Judge, after reviewing the case law on the subject, concludes his discussing by hooding that it was the duty of the plaintiff to prove that there was fraud committed and that, as that had not been established, the question whether the document was read over and explained to the plaintiff, in his opinion, in the circumstances, did not arise. This proposition, in our view, is clearly wrong and is contrary to the principles laid down by the Privy Council in a series of a decisions. In Indian pardhanashin 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 outsideis, 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 oraffirming the principle that the burden is upon the person who seeks to sustain a document executed by a pardanashin lady that the 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 Jagadish Chandra v. Debnath (A.I.R. 1940 P.C. 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 pardanashin 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 providing that the document was explained to her and that she understood it, but also by other evidence, direct and circumstantial.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 saidis true that before the learned Munsif the Advocates appearing for the parties contended that it was not necessary to give any finding on issue No. 3 and that the suit could be disposed of without giving any finding thereon. But the learned Munsif rightly did not accept the said suggestion and held that the issue had been framed on the pleadings and that all the relevant evidence had been adduced and that it was only proper to give a finding thereon. The learned Subordinate Judge pointed out that the main point for consideration was not the matter of jointness or separation, but only the validity or genuineness of the deed itself, and that "the question of separation or jointness thus only becomes a link in the chain to judge the validity or otherwise of the document, Ex. C". This statement of the learned Subordinate Judge is unobjectionable. The question of partition in the family was a circumstance which would have an important bearing on the question of probability of the widows executing a document admitting that there was no partition in the family and that they had no absolute interest in the said property.Now coming to the evidence, we cannot accept the argument of learned counsel for the respondents that there was no evidence in the case to rebut the presumption of Hindu law that a family is joint. The learned Munsif said that there was no documentary evidence on behalf of the plaintiff to prove separation; by that statement he meant that the partition was not effected by a written document, for the next sentence made it clear when he said that it was due to the fact of alleged oral partition. Then he considered the documents filed by the defendants in great detail and came to the conclusion that the said documents were 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 thecannot 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 onis true the finding could have been more explicit, but that does not detract from its finality. In the first part of the finding, the learned Subordinate Judge says in effect that, having regard to the facts and circumstances he had discussed earlier, the burden shifted to the first defendant, who did not adduce acceptable evidence to dislodge the circumstances against jointness. But in the second part of the finding he makes it clear that he had found that there was partition in the family. The finding is again a finding of fact. That a part, the High Court did not in any way question the correctness of the finding of the learned Munsif and the learned Subordinate Judge, but only ignored it on the ground that it was not the duty of the lower appellate court to deal with that question at all. We cannot appreciate the observations of the learned Judge of the High Court, for, in our view, that finding, as the learned Munsif pointed out, arose on the pleadings and, as the lower appellate court pointed out, had a direct impact on the main question to be decided in the case. We, therefore, hold that he said finding was binding upon the High Court.Even if that finding was ignored, there was sufficient material to sustain the finding of the first two courts. Both the courts fond that the first defendant, on whom the burden lay, not only did not establish that it was executed by the plaintiff with the knowledge of its contents, but that even apart from the burden of proof, that they also found that the plaintiff and her mother-in-law put their thumb marks on the document under the 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.