Judgement

Appeal (No. 80 of 1938) from a judgment and decree of the High Court (December 4, 1936) affirming a judgment and decree of the Subordinate Judge of Mymensingh (February 27, 1933).

The appellant, Hem Chandra Roy Chaudhury, was the proprietor of the Bailor Estate, in the district of Mymensingh, Bengal, and on attaining his majority in 1913 he appointed his grandmother, Nabin Kishore Chaudhurani, as trustee for the management of the estate. Between 1914 and 1917 they had

Law. Rep. 67 Ind. App. 309 ( 1939- 1940) Hem Chandra Roy Chaudhury V. Suradhani Debya Chaudhurani 108

jointly borrowed considerable sums of money from the Maharaja of Mymensingh on four mortgage deeds. The first of those mortgages was paid off by moneys raised from one Anath Bandhu Guha by means of a mortgage entered into on March 18, 1918. The other three mortgages were paid off with money raised by means of a mortgage of August 18, 1918, in favour of the first respondent, Suradhani Debya Chaudhurani, who lent Rs.1,20,000. The appellant and his grand mother also borrowed further sums from Anath Bandhu Guha under two mortgage deeds in 1920 and 1923.

The suit out of which this appeal arose was brought by the first respondent against the appellant and his grandmother for the enforcement of the mortgage of August 18, 1918. The respondents two to five, who were defendants three to six, were impleaded as the representatives of Anath Bandhu Guha, who had died before suit, and they were impleaded as being subsequent mortgagees of the whole property contained in the mortgage deed in suit. Nabin Kishore Chaudhurani, the second defendant, died before trial, and the appellant, the first defendant, was substituted in her place. On July 18, 1931, issues were framed, including one as to the sums due on the respective mortgages in favour of the plaintiff and of the defendants three to six, and also one on the question whether Nabin Kishore Chaudhurani, who was a purdanashin lady, had had the contents of the mortgage deed in suit read over to her and had understood them.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge gave judgment for the plaintiff. He found that the bond in suit was read in the presence of Nabin Kishore Chaudhurani, " but there is no evidence that "the effect of the bond was explained to her," but he was of opinion that she " was fully aware of the nature of all the "mortgage bonds put in this suit, and that she understood "the effects thereof," save that she did not understand that there was a stipulation in the bond making her personally liable. He further ordered that the amounts due to defendants three to six under their bonds should be entered in the decree.

An appeal by the appellant to the High Court (Ghose and McNair JJ.) was dismissed. On the question whether Nabin Kishore Chaudhurani was bound by the mortgage bond in suit, they upheld the finding of the Subordinate Judge that she executed the document fully understanding what she was doing, although she did not understand that there was a stipulation making her personally liable. They accordingly held that the mortgage bond in suit was a valid document, and that the suit had been rightly decreed.

1940. May 6. S. P. Khambatta for the appellant. There being a total failure of proof of any explanation of the contents of the mortgage deed the document is inoperative against Nabin Kishore Chaudhurani. The doctrine relating to deeds executed by purdanashin women is that they either give an intelligent consent or they do not, and therefore where the deed contains more than one important term, and there is no contractual assent to one of those terms on her part, that must apply to the whole contract, and the Court cannot hold the purdanashin to the bargain at all, inasmuch as the different promises are inter-related matters connected with the same transaction. In the absence of affirmative and conclusive evidence that the deed was fully and carefully explained th