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1974 Supreme(Cal) 57
HIGH COURT OF CALCUTTA
A. K. Sinha, Sen Gupta
CHAMELI DEBI - Appellant
Versus
PURUSATTAM SINGH - Respondent
A. F. A. D. 40 Of 1967
Decided On : MARCH 1, 1974
ABHIJIT KUMAR BANERJI, BUDHDHADEV CHATTERJEE, JITEN BANERJEE, LAL HEMANT KUMAR, Rabindra Nath Mitra, RATHINDRA NATH DE
The onus of proof lies on the person seeking to sustain a transaction entered into with a Pardanashin lady to establish that the document was entered into by her after clearly understanding the nature of the transaction.
Headnote:
CONVEYANCE - Pardanashin illiterate woman - onus of proof - document not read over and explained - presumption under Section 114 of the Evidence Act - failure to examine important witness - omission of memo of consideration - fiduciary relation - evidence of interested witnesses.
Fact of the Case:
A Pardanashin, illiterate woman executed a conveyance in favor of the respondents, claiming that she was persuaded to sign the document on the representation that it was a mortgage for a loan she had incurred from the respondent No. 1. The respondents filed a suit for declaration of title and possession, while the woman and her daughter filed a cross-suit for cancellation of the conveyance. The trial court found that the conveyance was not read over and explained to the woman and was fraudulent and void, while the appellate court reversed the decision.
Finding of the Court:
The High Court held that the appellate court erred in its approach to the onus of proof and failed to consider important evidence and surrounding circumstances. It also found that the appellate court failed to give reasons for believing the evidence of interested witnesses rejected by the trial court.
Issues: 1. Whether the onus of proof lies on the person executing a document to prove that it was read over and explained to them and that they understood its contents, or on the other party to prove that it was not. 2. Whether the failure to examine an important witness creates a rebuttable presumption under Section 114 of the Evidence Act. 3. Whether the omission of a memo of consideration in a conveyance vitiates the document. 4. Whether a creditor stands in a fiduciary relation to the debtor, and whether such relation can be used to exercise influence or make misrepresentations.
Ratio Decidendi: 1. The onus of proof lies on the person seeking to sustain a transaction entered into with a Pardanashin lady to establish that the document was entered into by her after clearly understanding the nature of the transaction. 2. The failure to examine an important witness creates a rebuttable presumption under Section 114 of the Evidence Act, but such presumption can be rebutted by other evidence. 3. The omission of a memo of consideration in a conveyance does not, by itself, vitiate the document, but it must be examined together with other evidence and surrounding circumstances. 4. A creditor stands in a fiduciary relation to the debtor, and such relation can be used to exercise influence or make misrepresentations.
Final Decision: The High Court allowed the appeals, set aside the judgments and decrees of the appellate court, and restored the judgments and decrees of the trial court.
( 1 ) THESE second appeals are preferred by the plaintiffs in a cross suit against common appellate judgment and decree dismissing her suit and decreeing the earlier suit of the respondents briefly in the following circumstances : the respondents in the present appeals filed a suit for declaration of their title and possession and for partition of certain immovable property on the basis of a registered conveyance executed by the deceased mother of the present appellant in favour of the minor respondent, son of respondent No. 1 being title suit No. 1 of 1961 in the third Court of Subordinate Judge at Howrah. Their case inter alia was that the executant in order to defray the expenses of litigation, maintenance, medical expenses etc. had to incur loans and for repayment of these loans she sold the disputed property in consideration of a sum of Rs. 5,000/ -. But as the purchasers could not get possession owing to the obstruction caused by the present appellant and her men, they were compelled to take recourse to law.
( 2 ) IN this suit the mother of the present appellant was defendant No. 1 and the appellant was defendant No. 2 and the defendant No. 3 was the son of the defendant No. 1. There were other pro forma defendants who were also made parties, possibly, for the purpose of partition of the disputed property. The joint defence taken by the defendant Nos. 1, 2 and 3 in their written statement was, in substance, apart from the general denial of material allegations that the mother of the present appellant Lilia was an old, Pardanashin, illiterate woman of over 80 years and she was pursuaded to sign the document of conveyance without knowing the contents thereof and without the document being read over and explained to her on the impression that the conveyance was really a deed of mortgage for Rs. 1,400/- which she incurred as loan from the father of the purchaser namely the respondent No. 1. Further specific case was that the conveyance was fraudulent, collusive and obtained by the father of the respondent No. 1 under undue influence and coercion taking advantage of the helpless condition of the mother of the appellant.
( 3 ) LATER in 1962 Lilia and her daughter the present appellant filed another suit exactly on the line of the defence taken in the earlier suit by them against the present respondents, inter alia for a declaration that the disputed conveyance was illegal, void and inoperative and fraudulent and for cancellation of the document with other consequential reliefs. The present respondents contested this suit and their defence was, in substance, the repetition of the allegations made in their plaint instituted by them earlier in 1961.
( 4 ) BOTH the suits were taken up together for hearing and the learned trial Court on the evidence found that the document of conveyance was not read over and explained to the mother of the present appellant and she executed the document without knowing the contents thereof. It was also found that the document in question was "fraudulent and mala fide and without consideration. " Accordingly, it held that the conveyance in favour of the respondent No. 2 was void, invalid and not binding upon the present appellant or her mother. In that view of the matter the trial Court dismissed the suit of the respondents and decreed the suit of the present appellants. On appeal the appellate court took a contrary view and found against the appellants on all points and decreed the suit of the present respondents and dismissed the suit of the appellant. That is how, in short, the appellants felt aggrieved and preferred the present appeal in this Court.
( 5 ) IN our opinion, the appellate court below made totally a wrong approach to the real question in controversy in the suit. It is true that the question as to whether a document was read over and explained to the executant or whether she executed such document knowing the contents thereof is essentially a question of fact. It i
