The judgment established the principle that in cases involving alienation by illiterate Purdanashin ladies, the burden of proof rests on those relying on the deed to affirmatively demonstrate the grantor's understanding and independent legal advice, and the necessity for corroborative evidence in financial transactions.

Judgement

NARASIMHAM, C. J. :-

These two appeals arise out of the judgment and decree of the first Additional Subordinate Judge of Cuttack in a suit for the enforcement of a simple mortgage bond (Ext. 2). The mortgage bond dated the 15th May, 1945 was executed jointly by Bhikari Ram (defendant No. 2) and Jasoda Dei (defendant No. 3 since dead) mortgaging the house of her minor son Mahesh Prasad Bhagat (defendant No. 1) for the sum of Rs. 10,000/- in favour of the two plaintiffs. Defendant No. 2 Bhikary Ram had admittedly no interest in the mortgaged property, but it was alleged by the plaintiffs that he was a near relation of defendant No. 3 who was a Purdanashin lady, that he was acting as the manager of her family and that the suit loan was advanced by the plaintiffs for a business, named Bhagawat Chemicals started by the family of which defendant No, 2 was the managing partner.

2. Defendant No. 1 who had become a major by the date of the institution of the suit denied all liability under the mortgage bond (Ex. 2) and stated that it was executed by his mother Jasoda Dei who was an illiterate Purdanashin woman, without knowing its contents and import and without getting independent advice, on the false representation made by defendant No. 2 and that consequently it was not binding on him Defendant No. 2 also stated that the bond did not represent a genuine transaction but that it was executed by him and Jasoda Dei by way of security for certain sums advanced to him by one Fazle Haque whose benamidars the plaintiffs were alleged to be. Plaintiff No. 1 is admittedly the son-in-law of the said Fazle Haque and plaintiff No. 2 is Fazle Haques brother. Defendant No. 2, however admitted that he had received in all Rs. 4,800/- from Fazle Haque for his business and further stated that he had paid him Rs. 1,200/-after getting a receipt. He admitted personal liability to pay the balance of the loan to Fazle Haque.

3. The learned Subordinate Judge held that the plaintiffs had failed to establish affirmatively that Jasoda Dei executed the mortgage bond after being made fully aware of its contents and import, and that consequently it was not binding on her minor son (defendant No. 1). He however gave a money decree for Rs. 4,800/- against Respondent No. 2 and refused to give a set-off for the sum of Rs. 1,200/- said to have been paid by him to Fazle Haque, observing that the said Fazle Haque had no authority to accept the same on behalf of the plaintiffs or to grant a receipt therefor.

4. The plaintiffs appealed to this Court, in F. A. 53 of 1953 against that portion of the judgment and decree of the learned Subordinate Judge dealing with the dismissal of the suit against defendant No. 1 and the disallowance of a portion of their claim against defendant No. 2. Defendant No. 2 also filed a cross-appeal in F. A.

52 of 1953, against the order of the Subordinate Judge refusing to give him a set-off for Rs. 1,200/-paid by him to Fazle Haque. Both these were heard together.

5. Mr. Sinha on behalf of defendant No. 2, however, stated that he would not press the cross-appeal. Hence we are concerned only with F. A. 53 of 1953 in which the main question for consideration is whether the mortgage bond (Ex. 2) is binding on defendant No. 1.

6. Admittedly, defendant No. 1 was a minor when Ext. 2 was executed on his behalf by his mother Jasoda Dei (since dead). The mortgaged property is also admitted to be the ancestral property of defendant No. 1. It is further admitted by the plaintiffs, in the plaint, that Jasoda Dei was a Purdanashin lady. Defendant No. 1 while deposing as D.W. 1 has also stated that apart from signing in Oriya, she was illiterate for all practical purposes. Though the plaintiffs have not categorically admitted that she was illiterate there is no rebutting evidence on their side to challenge this piece of evidence of defendant No. 1. There is also no evidence to show that defendant No. 3, though an illiterate Purdanashin lady, was an extraord