In dispositions by pardanashin ladies, the burden is on the relying party to prove the settlor acted with full comprehension and free will. However, this protection must not be transmuted into a legal disability to invalidate genuine transactions.

Lord Atkin. -

The plaintiff in this case claims as mutawali under a deed of wakf by which the settlor, one Asha Begum, a pardanashin lady now deceased, disposed of property of the value of about Rs. 20,000 on the terms that five-ninths of the income should be applied for the benefit of a mosque founded by her grandfather and four-ninths of the income should be applied for the maintenance of the mutawali, who was to be herself during her lifetime and on her decease the plaintiff, who was her maternal uncle. The defendants are the lady's husband and her nearest agnate and some tenants of the property. The suit is for possession. The execution of the deed is not in question. It is, however, undisputed that in the case of a disposition of property by a pardanashin lady an onus is cast on the per son relying on the disposition to establish that the transaction is ore which the disponent thoroughly comprehended and deliberately and of her own free will carried cut. After a trial in which the Subordinate Judge decided in favour of the defendants, the High Court, on appeal, ordered a new trial directing an issue in the terms mentioned 'above. The second trial Judge who had succeeded the first heard further evidence and found for the defendants, and on appeal his decision was reversed by the High Court, who entered judgment for the plaintiff. As has been said, there is no dispute as to the law, and it may be said that where as in this case the pardanashin lady is illiterate, the Court will be especially alert to see that the burden cast on those supporting her dispositions is satisfactorily discharged.

But after a careful consideration of the circumstances disclosed in the evidence in the present case, their Lordships are of opinion that the decision of the High Court should not be disturbed. Asha Begum, at the date of the deed in question, was a lady of between thirty and forty years of age. She had been married some years before to defendant 1 (now deceased and represented by his heir), but had only spent one night in his house, and had then returned to her father's house. Her father, Nanumia, in 1912 had given her the property in question, and had subsequently managed it under a power-of-attorney. He died in 1914. He was on bad terms with his own relations. The plaintiff was Asha Begum's maternal uncle ; he appears to have maintained affectionate relations with her, and to have advised her as to her health, which was bad. In 1912, shortly after the deed of gift, the father appears to have prepared a document under which his daughter records that before the gift she and her father had agreed that if she had no children the property should be sold and the proceeds applied to religious uses at Mecca and Medina in equal shares. It appears that in 1917 she was minded to carry out the wishes of her father. Evidence was given by the witness Nagardas, a friend of the family, that he was consulted by the lady, that he advised her that to sell the property might involve a loss, that there would be difficulty in remitting the money to Mecca and Medina, that a mosque at Broach bore her grandfather's name, and that the wakf might properly be made in favour of that mosque. The question of reserving part of the income for her maintenance was discussed, and the lady at that time decided to give nine-sixteenths to the mosque and retain seven-sixteenths for herself. A writer was sent for, a draft prepared, and eventually the document in question was executed and attested and duly registered. There is some discrepancy between the witnesses (by no means suspicious in the circumstances of delay between the date of the transaction and the date of the respective trials) as to the precise times which elapsed between the various stages of completion and the varying proposals which ultimately took shape in the deed. But there was abundant evidence that two drafts at last came into existence, that they were read over to the lady, and that she understood them.