Thirathman Jha and Others vs Mt. Gunjeswari Kuar and Others

Dawson-Miller, C.J.—The plaintiffs sued in this case to enforce a mortgage-bond executed on the 15th August 1907, by two brothers Surat Lal Das and Lachhuman Lal Das and the wife of a third brother, namely, Mt. Gunjeswari Kuer. The property mortgaged, it appears, was registered in the name of these three person. The loan to secure which the mortgage was executed was a sum of Rs. 625 borrowed, it was said, to pay of certain debts of one of the brothers and for the purposes of the family needs. The case of the plaintiffs was that at that time the two male executants of the bonds and their brother, the husband of the female executant, were joint in estate and that this property which they mortgaged was presumably a part of the joint family property. The female defendant, Mt. Gunjeswari Kuari, entered a separate written statement in the suit and contended, amongst other things, that she never executed the bond at all; that she never borrowed any money from the plaintiffs nor was she in need of borrowing, and she claimed that her share in the property mortgaged, namely, one-third, was at ail events not liable, for the debt covered by the bond. Her case was that the parties were separate in estate at the date when the mortgage-bond was executed and that she, not being in need of money or in debt, had no necessity to join in the mortgage-bond hypothecating her interest in the property.

The Munsif before whom the case came for trial found in favour of the plaintiffs and passed a decree in their favour against each of the defendants and ordered the sale of the interest of each of them in the property. From that decision Mt. Gunjeswari appealed, and the main point urged before the District Judge on appeal was that, even accepting the plaintiffs'' evidence, there was nothing to show that this mortgage-bond had been explained to the lady at the time when she executed it or to show that she was aware of and thoroughly understood and appreciated its contents. Upon this part of the case the learned District Judge dealt with the evidence on behalf of the plaintiffs and came to the conclusion that there was no evidence on the plaintiffs'' side that the bond was explained to the lady or that she understood that she was mortgaging her property. We have been referred to the evidence of the first witness for the plaintiffs and the statement of the learned District Judge which I have just referred to hardly appears to be borne out by the evidence given by that witness.

The learned Judge in criticising his evidence went so far as to say that in examination-in-chief this witness said nothing about the reading over of the bond. This is obviously a slip, because on looking at the witness'' evidence it appears, at the end of his examination in chief, that he distinctly states that the bond was read out to the defendants and then adds: "The contesting Mt. was not fraudulently asked to sign the security bond, That, however, is a small matter because it is not disputed that in his cross-examination he dealt very much more fully with this question. But the main criticism of the learned Judge''s finding is that it is based almost entirely upon a misapprehension of the real nature of the evidence given by the plaintiffs'' witness and it is not correct to say that there is no evidence on the plaintiffs'' side, that the lady understood that she was mortgaging her property. The learned District Judge seems to have assumed that unless it could be shown when the mortgage was actually executed, that it had not only been read over to the female executant but it had also been explained to her at that time, then she would not be liable under the mortgage. It is quite true that persons seeking to charge with liability under deeds of this sort, pardanashin ladies, have to prove, not merely that they executed the document sued upon, but also that they understood and appreciated the nature of the transaction which they were then purporting to enter into; but it is not necessary in all cases to show that at the time when the document was executed the explanation was then given, for it is obvious that in many cases, for example, where the lady herself has been instrumental in bringing about the transaction which is given effect to subsequently by the execution of the document, she may be perfectly well aware of the contents of the document before she executes it and if she is, although it is usual and necessary that it should he read over to her at that time, it is certainly unnecessary that it should be explained to her when she is already well aware of the nature of the document.

Turning to the evidence in the present case, it appears from that of the first witness for the plaintiffs that he himself, if his evidence is accepted, had an interview with this lady on two occasions before the document was executed. The first occasion was about four days before the execution of the deed and the second occasion was the day before, and she told him at those interviews that she was in need of money and he asked her to register a mortgage-bond. She told him what the nature of her requirements was. She had to pay up a loan, she said, of Rs. 150 to repair her house and had to find money for cultivation and for other purposes. If this evidence is accepted it seems fairly clear that the lady knew before she actually signed the bond exactly what the nature of it was. The case put forward on her behalf at the trial was that when she executed this bond she did not know that it was a mortgage at all. She thought that she was merely executing some security bond. That story was not accepted is the trial Court and the learned District Judge says nothing about it but merely decided the case upon the ground that the plaintiffs had failed to produce sufficient evidence, or indeed any evidence, to show that this lady at the time when she executed the bond had it explained to her.

The result is that the learned Judge has arrived at his conclusion by omitting to consider the evidence which was given as to the lady''s knowledge of the nature of the transaction under the misapprehension that no such evidence existed. I am not suggesting that the mere fact that he did not in terms refer to this evidence would be sufficient for sending it back for re-hearing, but in the present instance he has gone very much further than that; for he has stated that there is no evidence on the plaintiffs'' side that this lady understood that she was mortgaging her property. Of course, if he thought that, it was clear that he was entitled to arrive at the conclusion at which he did, namely, that the bond was not valid as against her; and that finding on his part, based as it was upon a misapprehension, for there was evidence on the plaintiffs'' side to the fact which he mentions, wag really the whole foundation of his judgment. For these reasons it seems to me that the judgment cannot stand and must go back for further consideration and the Court will consider whether in fact this lady first of all executed the bond at all, and, secondly, whether assuming she did execute it, she was aware of the nature of the transaction.

In remanding this case it must not be understood that this Court is necessarily taking a different view of the animal result which ought to be arrived at from that determined by the learned District Judge. It may be that the appellate Court when the case goes back to it may find many features in the evidence and in the document in the case which indicate that this lady did not really understand the nature of this document. It may be that he may find that she never executed it at all but all these are matters which must depend upon a review of the evidence before him.

We are not in a position to determine any of these questions. There are undoubtedly many suspicious facts appearing in connexion with this transaction if the other findings of the learned District Judge are to be accepted. At the same time the whole matter will be open to the lower appellate Court upon the rehearing of the appeal. Perhaps, I ought to add that in considering these questions the principles upon which the Courts in India ought to act are laid down at some length in the judgment of the Judicial Committee in the recent case of 89 Ind. Cas. 649 (Privy Council) . The decision appealed from is set aside, and the case will be sent back to the Court of the District Judge for reconsideration upon the facts. The costs of this appeal will abide the result of the re-hearing.

Foster, J.

I agree.