In cases involving the execution of documents by a purdanashin lady without independent advice, the onus lies on the party claiming under the deed to establish that the executant really understood the deed and intended to execute it as such, and that the execution is not merely a physical act but that the executant's mind went with it and she intended to give effect to the transaction represented by the deed.

Reuben, J.

1. This appeal by the defendant is directed against a decree of the subordinate Judge, Patna, declaring certain documents in operative and granting consequential relief.

2. The impugned documents purport to have been executed by one Mt. Bibi Ayesha in favour of the defendant-appellant. The defendant-appellant Amir Alam is the son of Ayeshas brother Akram. Plaintiff No. 1 Salma is the sister of Ayesha. Plaintiff no. 2 Afzal is the son of Ali Aslam, another brother of Ayesha. Ayesha died in September, 1943, leaving these three persons as her only heirs. The defendant became an orphan when he was aged about four years and was taken charge of by Ayesha, who had no children of her own. Ayeshas husband died about the year 1928 and since then the defendant has lived with her and has looked after her affairs. The impugned documents were executed by her when she was about sixty years of age and by then she parted with all her immovable property. Two of the documents are deeds of Hipa-bil-ewaz for a nominal consideration. The third is a sale-deed the consideration for which is stated to be Rs. 5,000/-. The case of the plaintiff is that Ayesha was induced to execute these deeds through fraud and undue influence, that she had no independent advice and did not understand what she was doing, that at best the documents represent fictitious transactions and no consideration passed. Also it was suggested that the documents are forged. The defence taken was that the documents are genuine, executed in due course and for consideration, and that the executant knew what she was doing and intended them to be effective documents.

3. There does not appear to have been serious attempt before the Subordinate Judge to establish the plea of forgery and the Subordinate Judge has not come to any clear finding thereon. In consideration of the relationship between the defendant and Mt. Ayesha, the Subordinate Judge placed on the defendant the onus of proof and formulated It to be to satisfy the Court."

"First that the deed was actually executed by her or by some person duly authorised by her with a full understanding of what she was about to do;

secondly, that she had full knowledge of the nature and effect of the transaction into which she is said to have entered and thirdly, that she had independent and disinterested advice in the matter."

On a consideration of the evidence he came to the conclusion that the defendant has failed to prove that the documents were executed by Ayesha with a knowledge and understanding of their contents. He also held that the consideration alleged had not passed and that effect was not given to the documents.

4. Ayesha was a widow aged about sixty years when she executed the documents in question. She was admittedly a purdanashin woman and was living alone with the defendant, who has been looking after her property for a very long time. The defendant is the sole beneficiary under the impugned" documents and by these documents Ayesha purports to strip herself of all her immovable property. In these circumstances, Counsel for the appellant concedes that the onus was heavy on the appellant to prove intelligent execution by Ayesha. He contends that on the evidence adduced the Subordinate Judge should have held this onus to have been discharged. He urges that the Subordinate Judge misdirected himself by regarding independent advice as essential and that, once the defendant succeeds in proving that Ayesha understood the nature of the documents which she was executing, the onus lies on the plaintiffs to prove that the documents represent fictitious and not real transactions. In view of these contentions, the arguments before us have been confined to the evidence adduced by the defendant.

5. In Kali Bakhsh Singh V/s. Ram Gopai Singh, 41 Ind App 23 Lord Shaw of Dunfermline observed:

"The possession of independent advice or the absence of it, is a fact to be taken into consideration and well weighed on a review of the w