1985 Supreme(MP) 402

Rampal Singh, J.
Dhaniram v. Karan Singh.
S. A. No. 222 of 1973 (G); Decided on 22-8-1985.

Headnote:(1) Evidence Act, 1872 -- S. 45 -- thumb impression disputed -- should be got examined by expert -- no reliance can be placed without such examination.

        (2) Evidence Act, 1872 -- S. 101 -- executants rustic and illiterate -- heavy burden lies on the opponent to prove that document was explained and interpreted to executants.

        (3) Civil P. C., 1908 -- S. 100 -- error or defect of law affecting case on merits -- interference in second appeal can be made.

        (4) Contract Act, 1872 -- S. 23 -- contract of forced labour -- is immoral or opposed to public policy.

        (5) Constitution of India -- Part IV -- agreement to pay less than minimum prescribed wages -- is something to repugnant human dignity.

        (6) Constitution of India -- human dignity is respected in our Constitution.

        Respondents No. 1 is, admittedly, a money lender. The appellant-defendants and Ruddar Singh, the father of respondent No. 2 who belongs to the same family, resided in village Kalyanpur, tahsil Karera, district Shivpuri. Respondents No. 1 plaintiff filed a suit against the said four defendants praying for a decree of Rs. 1,665/-. According to him, the said defendants borrowed a sum of Rs. 1,319/- in cash and executed a document in his favour after affixing their thumb impressions on it, that they shall pay the interest on this amount at the rate of 50 paise per hundred rupees per month and shall also pay the principal amount by Baisakh Sudi 15, Samvat 2023. According to the plaintiff, the defendants also agreed that Kishanlal the defendant, in lieu of the loan shall serve the plaintiff as an agricultural labouer on a meagre pay of Rs. 14/- per month till the amount is satisfied. In para 1 of the plaint, it is also mentioned that on 9-1-1966 the defendants took a further loan of Rs. 402/- through defendant No. 2 Dhaniram affixing his thumb impression on a Bahi Khata. According to the plaint, defendant Kishanlal worked for four months and, hence, a decree, for Rs. 1,665/- be passed against them jointly and severally. The defendants in their written-statement denied having executed any document or having entered into any contract with the plaintiff. However, after framing the issues and recording the evidence of the parties, the trial Court decreed the suit and held that the defendants were liable to pay the debt. On appeal, the Additional District Judge, maintained the judgment and decree passed by the trial Court. The trial Court at the relevant time was presided over by one Shri B. L. Singhal, Civil Judge Class II, Karera. The defendants/appellants have invoked the jurisdiction of this Court under section 100 of the Code of Civil Procedure and challenged the impugned judgment and decree passed against them.

        Held : Admittedly, all the defendants were illiterate persons belonging to the labour class of the society. They definitely belong to the rustic, illiterate and ignorant class of persons, who are in abundance in villages. It is to be noted that the alleged thumb impressions were disputed by the defendants either in the Bahi Khata or in the original document copy whereof is Ex. P-2. On the face of this denial, the plaintiff should have got the thumb impressions examined by some finger-print expert and proved the fact that the thumb impressions belong to the defendants and to none else. In this age, the science has progressed wonderfully, and it cannot be disputed that the finger-print science has developed into perfection. One of the tenets of this branch of science is that the thumb impression of one person never corresponds with the thumb impression of another man. This Gods miracle in creating individuality of the human beings could have easily been proved by the plaintiff in this case. It is also evident from the judgments of both the Courts below that they have not given any finding nor framed issue on the point whether at the time of execution of the document, the contents of the document were read over and explained to these illiterate defendants or not. Non-examination of the finger-print expert leads me to the conclusion that the transaction may be sham and the document may be forged. This view is further strengthened in view of the fact that the original document is not on record. Exhibit P-2 is only a certified copy produced in the Court. Non production of the original document by the plaintiff during the trial prevents this Court from appreciating this version. However, I have read the certified copy on record and come to the conclusion that there is no such mention that it was read over by Shankarlal (PW 2), who is said to be the scribe of the original document, to the defendants, who are rustic and illiterate. Where the defendants are illiterate, rustic and belonging to the labour class and do not know the language in which the document is written, and then affix their thumb impressions, the onus to prove that the document was properly explained and interpreted to the persons affixing their thumb impressions so as to make them understand its true import lies very heavily upon the plaintiff, who is relying on the document. (Omanhene Kwamin Eassayin v. Omanhene Bendentu II, AIR 1937 P. C. 274). This heavy responsibility has not been discharged by the plaintiff and, hence, it cannot be said that the plaintiff was successful in proving his case. It is, no doubt, settled that the concurrent findings of fact arrived at by the Courts below cannot in second appeal be interfered on the ground of erroneous finding of fact, howsoever gross the error might seem to be. But it is also true that if the High Court is satisfied that the decision is contrary to law or some usage having the force of law, or that the decision has failed to determine some material issue of law or usage having the force of law, or if there is a substantial error or defect in the procedure provided by the Code, or by any other law for the time being in force which may have produced error or defect in the decision of the case upon the merits, it can interfere with the conclusions of the lower appellate Court, and I intend to do so, for the reasons stated hereinabove. Therefore, as the plaintiff has failed to prove his case, the appeal should be allowed on this ground alone.

        There is another aspect in this case, which cannot be ignored by this Court. On perusal of Ext. P-2, the certified copy of the original document, it is mentioned therein that--

        "KISHANLAL APKI CHAKRI HAL VAGAIRA KI KAREGA. JISKI TANKHA MAHWARI RUPAIYA 14 (CHAUDH) WA KHA A KAPDA VAGRIAH LEWENGE JAB TAK APKE RUPAIYA NA PATE JAB TAK BADASTUR APKI CHAKRI KARTA RAHUNGA AGAR HAM WAYADA KHILAPHI KAREN TO DAYAN KO AKHTIAR HOGA KI WAJAPTA KARYAWAHI KARKE JARRE KARJA WASOOL KAREN"

       This shows that the plaintiff took forced labour from defendant-Kishanlal, a poor labourer of the village, merely paying Rs. 14/- per month. Such contracts are repugnant in law. If the contract entered into between the parties is of such a nature, that, if permitted, it would defeat the provisions of law, or involves or implies injury to the person or property of another, or the Court regards it as immoral, or opposed to public policy. The promise may be of something which it would be unlawful to perform and here it is, perhaps, simpler to say that the object of the agreement, viz., the unlawful performance, was forbidden. This principle is contained in section 23 of the Indian Contract Act. If the said contract cannot be said to be immoral, it can definitely be said to be opposed to public policy and against human dignity. Human dignity is recognised and respected in our Constitution. Human dignity is also respected by the Charter of the United Nations. In my opinion, a citizen of India, howsoever low or illiterate be may be, however in need for money due to bunger he may be, cannot be forced by a moneyed person to enter into such a contract which offends the very soul of the principle of rule of law. The Directive Principles of State Policy contained in Part IV of our Constitution emphasise importance of proper and equal pay for man and woman where they are required to work. In the year 1966, when the document was scribed, the payment of an agricultural labourer minimum was Rs. 5/- per day. The condition of paying Rs. 14/- per month is something repugnant to human dignity. The food, which may have been charitably supplied by the plaintiff to the defendant, must have been of the lowest quality, fit only for animals and not for human beings. The preamble of our Constitution guarantees justice-social, economic and political. This contract offends the very soul of social justice. This document virtually kept one of the defendants, viz., Kishanlal, in bondage and bonded labour for four months and, hence, this document cannot be said to be based upon moral considerations. It is most immoral, and upon its basis a decree cannot be passed against the appellants. AIR 1937 PC 274 relied on. Appeal allowed.