Judgement

Appeal from a decree of the High Court (May 4, 1894) affirming a decree of the First Subordinate Judge of Dacca (May 20, 1892) in favour of the respondents.

The suit was brought on May 9, 1891, on a simple mortgage bond alleged to have been executed by the appellant, a Mahomedan purdah nashin lady.

The written statement raised the defence that she had not executed the bond; had not received the consideration; that no debt of hers had been discharged thereby; that she was not in Dacca at the time of its execution there, but at Ghaghra, in Mymensing; that she was a respectable Mahomedan lady living in seclusion, unable to manage her affairs; that her business was on many occasions transacted for her with her permission by her son Imdad Ali; that she had learnt from the bond in suit and other bonds that her son and " his intimate friend and relation Reza Karim Meah," having treacherously created certain loans, had illegally and falsely fabricated the bond in suit.

A commission was applied for to take her evidence, the procedure in regard to which is stated in their Lordships judgment.

The Subordinate Judge found that the bond had been read and explained to the appellant; that nearly the whole con sideration alleged in the bond had been paid by the respondents according to her directions; that there was no collusion between her son and the respondents; that she was not absent from Dacca at the time of execution, and that Imdad Ali could not have had her falsely personated without her knowledge. As to the objection arising out of her position as a purdah nashin, he said " The defendant cannot complain that she could not get competent advice. She executed the bond at her own house amongst her servants, friends, and relations, who were quite competent to advise her in the matter."

The High Courts judgment, which is approved by their Lordships as a correct application of the law relating to purdah nashins, is as follows —

" The defence which is made here is that the mortgage deed was not executed by this defendant at all, but that her name was forged by other people, and so she was not answerable it is also suggested that even if this is not shewn, the plaintiff has not proved that the transaction was ever explained to her so as to make her, under the circumstance of her being a purdah nashin lady, answerable upon it; and Dr. Bash Behari Ghose further argues that, whether she is answerable for the principal or not, she is not answerable for compound interest, because there is no evidence that the meaning of compound interest was explained to her; and he asks that the case may be sent back in order that she may be called as a witness and give her statement, she never having given her evidence in this case at all.

" The plaintiffs case is a straightforward one. His witnesses prove that this document was undoubtedly executed at the house where this lady lived, and it was registered, I believe, on or about the same date. His account is that the Rs.30,000 was actually produced at the time the mortgage was executed, but that, at the request of the defendant herself, it was taken away by him and was paid by him from time to time to her son and another person, as it was required for the purpose of discharging old liabilities of this very defendant.

" The plaintiff has produced his books, which are kept in a perfectly regular way, and which shew, and shew satisfactorily, that the whole of this Rs.30,000 was paid by him to the persons who are named by the defendant, and that as to Rs.24,000 and odd of it, it was applied in the actual payment of pre-existing debts of the defendant.

" Then it appears that the only person who was called to identify the defendant as the person who executed this mortgage was a person of the name of Reza Karim. Reza Karim says that he was present at the time, that he knew this lady, that he recognised her voice, and that she was the person whose hand he saw sign this document. On the other hand, it appears