Judgement

Appeal (No. 92 of 1934) from a judgment and decree of the Chief Court of Oudh (April 27, 1933) reversing a judgment and decree of the Subordinate Judge of Kheri (September 7, 1931).

The action out of which this appeal arose was brought by the appellants to recover principal and interest due under a mortgage deed in respect of certain property owned by the respondent, executed on September 8, 1924, by the respondent and her late husband in favour of the appellants to secure repayment of Rs. 12,500.

The respondent was an illiterate purdanashin lady, and when she executed the deed by putting her thumb mark on it she was in a room behind a curtain, her husband and two attesting witnesses who also signed the document being on the other side of the curtain. The questions were (1.) Whether the appellants had given sufficient proof of due attestation to satisfy the terms of s. 3 of the Transfer of Property Act, 1882, which, as amended by Act XXVII. of 1926, provides u and each of whom has signed the instrument in the presence of the executant "; (2.) whether the appellants had given sufficient proof in the case of an illiterate purdanashin lady that she thoroughly comprehended and deliberately of her own free will carried out the transaction.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge was of opinion that the respondent had intelligently executed the deed in the presence of attesting witnesses, and he passed a decree in favour of the appellants.

On appeal the Chief Court of Oudh held first, that since the respondent could not see the attesting witnesses and was not shown to have had her attention called to the fact that they were signing the bond as attesting witnesses, they could not be said to have signed the deed in her presence, and the bond was not therefore attested; and, secondly, they were not satisfied that intelligent execution of the bond by her had been established. The appeal is reported at ( 1934) I. L. R. 9 Luck. 12.

1936. April 23, 24. Dunne K.C. and Abdul Majid for the appellants. The execution was an intelligent execution the respondent knew what she was doing. It was only by saying that a "thin" curtain meant a "thick" one that the Chief Court could find that she did not see the attestation through the curtain, and that the attestation was not made in her presence. The only question is that which was raised in the Chief Court, whether the attestation was in the presence of the lady. Sect. 3 of the Transfer of Property Act, 1882, as amended, does not say that she has to see the signatures of the attesting witnesses being put on it only means that she has to be present there, and if she chooses to see the signatures she may. On the point of her taking independent advice, the particular circumstances of the case must be taken into account. She was on affectionate terms with her husband; the property had been given to her by him; she knew of his financial position, and she also required money herself. This was a transaction of such a nature that it is not necessary to prove independent advice, since she knew the exact nature of it and entered into it willingly. The Registrar, who was independent, brought the nature of the transaction to her notice. "Independent advice" does not mean

advice that will stop her entering into the transaction it means only the explaining to her and making her understand the nature of the transaction. She is free to enter into the transaction. [Reference was made to Farid-un-Nisa v. Mukhtar Ahmad (( 1925) L. R. 52 I. A. 342.)].

Majid followed, and referred to Sheoprasan Singh v. Munshi Narsingh Sahay. (( 1932) 36 Cal. W. N. 597.)

De Gruyther K.C. and Pringle for the first respondent. There are three points (a) The burden of proof is on the mortgagee to show necessity; (b) whether the mortgage has been attested within the meaning of the Transfer of Property Act; and (c) whether it was explained to the executant and thoroughly understood by her.