# Vishram Shukla v. Smt. Rajdei & Ors

- **Citation:** (2022) 3 ILRA 812
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-04
- **Case number:** Second Appeal No. 108 of 1995
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishram-shukla-v-smt-rajdei-ors-48244
- **Pages:** 22

## Headnote

(A) Civil Law - Civil Procedure Code, 1908
- Section 100, Order VI -Rule 4, Order
XVII-Rule 3, Order XLI - Rule 27: -
Plaintiff's Second Appeal - arising from a
Suit
for
specific
performance
-
for
agreement of sale - Decreed by Civil Judge
- Civil Appeal - filed by defendants,
allowed, setting aside judgment & decree
- thus, Second Appeal against-Lower
appellate Court held that agreement for
sale was a result of fraud and collusion -
Finding of lower appellate Court that
respondents neither entered into any
agreement, nor received any earnest
money - And alleged agreement for sale
was beyond real St. of affairs - once an
illiterate and rustic women urges a plea of
non-est-factum by underlying fraud or
misrepresentation - then the burden of
proof would certainly lie on beneficiary -
it cannot be discharged not only by
leading
evidence
to
show
that
the
document was explained to her & she
understood it, but by other direct &
circumstantial evidences as it has been
held
in
'Mst.
Kharbuja
Kuer
Vs
Jangbahadur Rai & other' Judgment -
there is no reason for this court to take a
different view than that taken by the
Lower Appellate Court - hence, Second
Appeal fails and is dismissed with costs to
the defendants in all courts. (Para - 31, 33,
37, 40, 48, 49)

Appeal dismissed. (E-11)

List of Cases cited: -

## Text

_Characters 0–39,934 of 77,111. This is a partial read: ask again with offset=39934 for what follows._

812 INDIAN LAW REPORTS ALLAHABAD SERIES

46. With the above observations and
directions, the appeal is allowed.
----------
(2022)03ILR A812
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.02.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 108 of 1995

Vishram Shukla ...Appellant
Versus
Smt. Rajdei & Ors. ...Respondents

Counsel for the Appellant:
Sri Arvind Kumar, Sri B.M. Pandey, Sri N.L.
Tripathi, Sri R.S. Maurya, Sri Raj Kumar
Kesari, Sri Vijay Kumar Rai, Sri Sankatha
Rai

Counsel for the Respondents:
Sri Ram Kishore Pandey, Sri V.K. Tripathi,
Sri Virendra Kumar Gupta

(A) Civil Law - Civil Procedure Code, 1908
- Section 100, Order VI -Rule 4, Order
XVII-Rule 3, Order XLI - Rule 27: -
Plaintiff's Second Appeal - arising from a
Suit
for
specific
performance
-
for
agreement of sale - Decreed by Civil Judge
- Civil Appeal - filed by defendants,
allowed, setting aside judgment & decree
- thus, Second Appeal against-Lower
appellate Court held that agreement for
sale was a result of fraud and collusion -
Finding of lower appellate Court that
respondents neither entered into any
agreement, nor received any earnest
money - And alleged agreement for sale
was beyond real St. of affairs - once an
illiterate and rustic women urges a plea of
non-est-factum by underlying fraud or
misrepresentation - then the burden of
proof would certainly lie on beneficiary -
it cannot be discharged not only by
leading
evidence
to
show
that
the
document was explained to her & she
understood it, but by other direct &
circumstantial evidences as it has been
held
in
'Mst.
Kharbuja
Kuer
Vs
Jangbahadur Rai & other' Judgment -
there is no reason for this court to take a
different view than that taken by the
Lower Appellate Court - hence, Second
Appeal fails and is dismissed with costs to
the defendants in all courts. (Para - 31, 33,
37, 40, 48, 49)

Appeal dismissed. (E-11)

List of Cases cited: -

1. K N Nagarajappa & ors. Vs H. Narasimha
Reddy (AIR 2021 SC 4259),

2. Ramesh Chand Vs Sant Ram (2020 Vol. 5 ALJ
453),

3. Mst. Kharbuja Kuer Vs Jangbahadur Rai &
ors. (AIR 1963 SC 1203),

4. Chitambaram Pillai & ors. Vs Muthammal &
anr.(1993 vol. 1 MLJ 535),

5. Smt. Sonia Parshini Vs Sheikh Moula Baksha
(AIR 1955 Cal. 17),

6. Hodges & anr.Vs Delhi and Londan Bank,
Ltd. (1899-1900 XXVII Indian Appeals 168),

7. Paras Nath Rai Vs Tileshar Kunwar (1965
All,L.J. 1080),

8. Manohar Lal Vs Rajeshwari Devi & ors. (AIR
1977 All 36),

9. Byles, J, in Foster Vs Mackinno, (1869 (4) CP
704),

10. Mahendra Singh Vs Ramesh Singh (2021
Vol. 2 ALJ 606).

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a plaintiff's Second Appeal,
arising from a Suit for specific performance
of contract.
3 All. Vishram Shukla Vs. Smt. Rajdei & Ors.
813

2. The facts giving rise to this Appeal
are these:

One Kewla Prasad was the
bhumidhar of Plot No.563, ademeasuing 217-17, situate at Mauza Tisentulapur,
Pargana Khairagarh, District Allahabad
(now Prayagraj). Kewla Prasad transferred
an area of 12 biswa 17 dhur in favour of
Ram Shringar, Ram Surat and Kailash
Nath, sons of Shyam Lal. He transferred
the residue of 2 bigha 5 biswa in favour of
Smt. Rajdei, the wife of one of his
grandsons, Uma Shankar in the branch of
his son, Shiv Mohan and his minor son,
Girja Shankar. The transfer aforesaid in
favour of Smt. Rajdei and Girja Shankar
was made through a registered sale deed
dated 29.05.1986. About a month and a half
after the sale deed last mentioned was
executed by Kewla Prasad in favour of
Smt. Rajdei and Girja Shankar (minor), it
was claimed by one Vishram Shukla that
Smt. Rajdei and the minor, Girja Shankar,
represented by his mother and guardian,
Smt. Sukhdei, had executed a registered
agreement to sell in his favour on 15th July,
1986, covenanting to transfer the property,
received by them through the sale deed
dated 29.05.1986. The two had settled
under
the
agreement
to
sell
dated
15.07.1986,
a
sale
consideration
of
Rs.60,000/-.

It was alleged by Vishram Shukla
that at the time of registration of the
agreement, Smt. Rajdei and Smt. Sukhdei,
on behalf of the minor, had accepted in
earnest a sum of Rs.35,000/- with a
covenant that the balance of Rs.25,000/-
would be paid at the time of execution of
the sale deed. The sale deed was agreed to
be executed within two years. Vishram
Shukla claimed that he was always ready
and willing to secure necessary execution
and registration of the sale deed and for the
purpose, sent a notice on 13.06.1988 to
Smt. Rajdei and Smt. Sukhdei, representing
the minor's interest, asking them to appear
before
the
Sub-Registrar,
Meja
on
15.07.1988. But the two did not appear.

It was on these allegations that
Vishram Shukla instituted Original Suit
No.529 of 1988 for specific performance of
contract, arraying Smt. Rajdei as defendant
no.1, Girja Shankar, then a minor aged
about 17 years through his mother and next
friend, Smt. Sukhdei as defendant no.2 and
Smt. Sukhdei as the third defendant. There
is an alternate relief claimed in the suit for
refund of the earnest of Rs.35,000/- with
interest, if specific performance be refused.
This suit was instituted on 04.08.1988.
Vishram Shukla, who has died pending this
Appeal, represented by his four sons, who
are his heirs and LRs, is the plaintiffappellant here, whereas Smt. Rajdei, Girja
Shankar and Smt. Sukhdei are the three
defendant-respondents.
The
deceased
plaintiff-appellant, represented by his heirs
and LRs, who are appellant nos.1/1 to 1/4,
shall hereinafter be referred to as 'the
plaintiff'. The
three
defendants
shall
hereinafter
be
referred
to
as
'the
defendants', wherever the reference is to all
of them and by their names, in case of an
individual reference.

3. A joint written statement dated
27.02.1989 was filed by the defendants,
generally traversing the plaint allegations.
The sale deed of 29th of May, 1986 in
favour of Smt. Rajdei and the minor Girja
Shankar was not denied and it was averred
that the purchasers had become bhumidhars
in possession of the land transferred to
them. It was said in the additional pleas that
on 29.05.1986, the three other sons of
Kewla Prasad, to wit, Lal Mani, Raj Narain
and Gulab Shankar had quarreled over the
assignment of land by Kewla Prasad to the
814 INDIAN LAW REPORTS ALLAHABAD SERIES
two defendants. They had fomented Daya
Shankar, another son of Shiv Mohan, their
brother and also a grandson of Kewla
Prasad to protest that he had not been
assigned any land by Kewla Prasad. This
had led to strife in the family and in order
to buy peace, Smt. Rajdei and Smt.
Sukhdei, acting for the minor, agreed to
transfer to Daya Shankar one-third share in
whatever land was assigned to them by
Kewla Prasad under the sale deed of
29.05.1986. Smt. Rajdei and Smt. Sukhdei
had asked Daya Shankar to offer a
reasonable price for the purpose, to which
Daya Shankar said that he did not have
ready
money. He
demanded
that
a
registered agreement be executed in his
favour and upon necessary resources being
garnered, he would get a sale deed
executed for the agreed one-third share.

4. It is the defendants' case that the
proposal was accepted by Smt. Rajdei and
by Smt. Sukhdei on behalf of the minor,
Girja Shankar, that was settled at a
bargained price of Rs.9,000/- for the onethird share. It is pleaded in the written
statement that this settlement was arrived at
in order to quell strife in the family of Shiv
Mohan. The defendants came up with a
specific case that on 15.07.1986, Smt.
Rajdei and Sukhdei went over to the SubRegistrar's office to execute a registered
agreement for the one-third part of
whatever had been assigned to them under
the sale deed of 29.05.1986. Since the
plaintiff is a relative of the defendants and
had been visiting Village Tikapur, while
Smt. Sukhdei's husband, Shiv Mohan was
not in town, the plaintiff accompanied Smt.
Rajdei and Smt. Sukhdei to the SubRegistrar's office. It is pleaded that at the
time of execution of the registered
agreement, Daya Shankar agreed to pay in
earnest a sum of Rs.3500/- out of the
agreed sale consideration of Rs.9,000/-.
There is a specific plea raised in the written
statement that both Smt. Rajdei and Smt.
Sukhdei are illiterate and rustic women
hailing
from
a
village,
and
taking
advantage of their handicap arising from
ignorance, the plaintiff illegally got a
registered agreement to sell in his favour
for the entire land admeasuring 2 bigha 3
biswa.

5. It is specifically pleaded further
that on 15.07.1986, the defendants did not
execute any registered agreement in favour
of the plaintiff, contracting to sell the said
land, which shall hereinafter be referred to
as the 'suit property', for a sum of
Rs.60,000/-. It is also pleaded that they
never received the earnest of Rs.35,000/-
from the plaintiff and never executed the
registered agreement to their knowledge. It
is also pleaded on behalf of the defendants
that the registered agreement to sell dated
15.07.1986 in favour of the plaintiff (for
short, 'the suit agreement') is the product of
fraud and deceit. Neither the contents of the
suit agreement were read out to the
defendants nor were they made understand
it. It is also pleaded specifically that they
never instructed the suit agreement to be
scribed nor were they aware of its contents.
It is further pleaded in paragraph No.23 of
the written statement that the plaintiff,
along with Lal Mani, Raj Narain and
Gulab, who are brothers of Shiv Mohan,
have connived together to secure execution
of the suit agreement dated 15.07.1986
fraudulently, taking advantage of the
defendants' ignorance. It is particularly
pleaded that the defendants came to know
of the suit agreement and the fraud played
upon them in consequence of service of
summons of the suit, which they could
understand after necessary consultations
with their local Counsel. It is also averred
3 All. Vishram Shukla Vs. Smt. Rajdei & Ors.
815
in paragraph No.25 that the plaintiff, in any
event, is not entitled to a decree of specific
performance.

6. On the pleadings of parties, the
Trial Court struck the following issues:

"1- Whether the plaintiff has
entered into an agreement with defendants
nos.1 and 2 and paid Rs.35,000/- as
advance?

2- Whether the plaintiff has given
any notice to defendant, as alleged?

3- Whether agreement has been
procured by practising fraud on defendant?

4- To what relief?"

7. In support of the plaintiff's case, the
suit agreement in original was filed and the
plaintiff
examined himself
as PW-1.
Another witness, Shrinath was examined as
PW-2, who is an attesting witness to the
suit agreement. The defendants, on the
other hand, examined Smt. Rajdei as DW-1
and Shiv Mohan as DW-2.

8. There is an interesting feature
about the proceedings in the suit. After the
parties' evidence was over and the suit was
set down for address of arguments, the
plaintiff did not appear and the defendants'
learned Counsel did not address the Court
in his absence. The Trial Judge proceeded
to decide the suit on merits upon
considering the evidence of parties on each
of the issues and vide judgment and decree
dated 03.12.1991. The suit was decreed for
specific performance.

9. An application to set aside the
decree dated 03.12.1991, that was brought
dubbing the judgment ex parte, was
rejected by the Trial Judge vide order dated
15.02.1992. It was held that the Court had
proceeded under Order XVII Rule 3 CPC
and pronounced judgment on merits. It
does not appear from record that this order
was disturbed. There is no quarrel about it
any more.

10. The defendants appealed the Trial
Court's decree to the District Judge of
Allahabad, where it was numbered as Civil
Appeal No.197 of 1992. The appeal was
assigned to the learned IIIrd Additional
District Judge, Allahabad, before whom it
came up for hearing on 17.11.1994. The
learned Additional District Judge, by his
judgment and decree dated 17.11.1994,
allowed the appeal and dismissed the suit,
leaving parties to bear their own costs.

11. Aggrieved, this appeal from
appellate
decree
was
instituted
on
27.01.1995 by the plaintiff.

12. This appeal was admitted to
hearing on 03.10.2007. On 17.12.2007, it
came up for hearing before the Court. The
Court, holding service to be sufficient,
proceeded to determine the appeal ex parte
by
the
judgment
and
decree
dated
17.12.2007. The appeal was heard ex parte
on the following substantial questions of
law:

"(i) Whether the lower appellate
court acted illegally in reversing the finding
recorded by the trial court on irrelevant
circumstances culled out by the lower
appellate court itself?

(ii) Whether the lower appellate
court has acted illegally in accepting the
vague
assertion
of
fraud
and
misrepresentation made by the defendants in
the
written
statement
without
any
particulars in the pleading and the evidence
on the record?

(iv)
Whether
none
of
the
particulars noticed by the lower appellate
816 INDIAN LAW REPORTS ALLAHABAD SERIES
court in support of its judgment, were
pleaded in the written statement and proved
by the defendants. No suggestion was made
at all during the course of evidence and the
argument before the trial court. The lower
appellate court has based its finding only
on surmises and conjectures. The finding
recorded by the lower appellate court,
therefore, is arbitrary, erroneous, illegal and
perverse?"

13.
 The
appeal
was
allowed,
answering all the substantial questions of
law in the plaintiff's favour, with the result
that the Lower Appellate Court's decree
was set aside and that of the Trial Court
restored.

14. An application to set aside the ex
parte judgment and decree and re-admit the
appeal to its original file and number was
made to this Court on behalf of the
defendants. The application was allowed on
21.05.2013 and the ex parte judgment and
decree dated 17.12.2007 was set aside. This
Court, however, proceeded to hear the appeal
on merits. The entire ex parte judgment dated
17.12.2007 was extracted by the Court in the
judgment and order dated 21.05.2013 and it
was remarked that the Court was not inclined
to take a different view after hearing learned
Counsel for the defendants at length. This
Court, however, modified the decree of the
Trial Court in that, that while restoring it for
the relief of the specific performance, a
direction was made to the plaintiff to pay an
additional sum of Rs.70,000/- along with the
balance sale consideration of Rs.25,000/-,
requiring all of it to be deposited within two
months of the date of judgment. There were
certain incidental directions also in the
decree.

15. On a Petition for Special Leave
being preferred to the Supreme Court, leave
was granted by their Lordships and the
Civil Appeal allowed by an order dated
23.08.2019, with a remand to this Court,
directing the second appeal to be decided
after hearing the learned Counsel for the
parties. The suit being of the year 1988, this
Court was requested to decide the appeal
preferably within six months. This appeal
came up for hearing before this Court on
22.01.2020 and two more substantial
questions of law were framed, which read:

"(V) Whether in case of an
illiterate and rustic woman, who raises a
plea of non est factum, the burden of proof
is reversed and lies upon the other side,
who propound the document?

(VI) Whether a document in
respect of which it is pleaded by a party
that it was obtained by the other side
through fraud and misrepresentation, is the
said document voidable at the option of the
party
claiming
this
fraud
or
misrepresentation, or it is void?"

16. It must also be noticed that an
application to bring on record additional
evidence under Order XLI Rule 27 CPC
was made on behalf of the plaintiff,
particularly, bearing in mind substantial
question of law No. (V), formulated vide
order dated 22.01.2020. This application
sought to admit to the record certified
copies of sale deeds dated 30.05.1997,
30.06.2010,
22.07.2011,
executed
by
defendant no.1, Smt. Rajdei in favour of
different third parties. Also, a certified copy
of the khatauni issued on 27.01.2020,
relating to Khata No.77 for the Fasli Years
1423-1428, was sought to be brought on
record
as
additional
evidence.
This
application was allowed vide order dated
25.02.2020
and
the
four
documents,
whereof formal proof was dispensed with,
were ordered to be exhibited vide order
3 All. Vishram Shukla Vs. Smt. Rajdei & Ors.
817
dated 01.07.2021. The documents have
been exhibited, under orders of the Court
by the Joint Registrar, as Exhibits A1, A2,
A3 and A4.

17. Heard Mr. Raj Kumar Kesari,
learned Counsel for the plaintiff and Mr.
Virendra Kumar Gupta, learned Counsel
appearing on behalf of the defendants.

18. The foremost substantial question
of law, that is required to be answered, is
the one numbered as (V), formulated vide
order dated 22.01.2020. Along with it,
Question No. (ii), initially formulated, and
Question No. (VI), also formulated vide
order
dated
22.01.2020,
can
be
conveniently considered.

19. The question, whether in the case of
an illiterate and rustic woman, who raises a plea
of non est factum, the burden of proof is
reversed and lies upon the other side, who
propounds the document, has been a matter of
issue in the past also. It must be said
straightaway that a plea of non est factum raised
by any illiterate and rustic woman, who says
that she could not understand the contents or
even the nature of the document, to which she
has appended her mark, is distinct and different
from a plea of fraud and misrepresentation. It is
quite another matter that the non est factum
pleaded by an illiterate and rustic woman may
be the result of fraud and misrepresentation, or
pleaded to be so, to explain how she appended
her mark to a document, the contents whereof
she did not understand or even its nature. But a
plea of non est factum, raised by an illiterate and
rustic woman, is distinct and different from a
plea of fraud and misrepresentation, raised as
such, to question the validity of one's own
solemn deed.

20. The principle about reversal of
burden applicable to illiterate and rustic
woman evolved essentially from the plea of
non est factum in England, where there was
no principle about reversal, but the
distinction between this plea on one hand
and fraud and misrepresentation on the
other, was clearly delineated. The rule
about reversal of burden was invented in
the Indian context by the Privy Council
relating to pardanashin women through a
series of decisions and later came to be
extended to illiterate and rustic women as a
class by Indian Courts, who suffers from
the same kind of disabilities as pardanashin
women.

21. I had occasion to trace and
consider the development of the rule,
besides subtleties of its distinction from a
plea of fraud and misrepresentation, as also
its application to illiterate and rustic
woman, in Mahendra Singh v. Ramesh
Singh, 2021(2) ALJ 606. I would venture
to quote wholesomely from Mahendra
Singh (supra) all that has bearing on the
point and the substantial question of law
under consideration. In Mahendra Singh,
the origin of the rule and its development in
India was adumbrated thus:

"31. It would be profitable first to
look at the principle about a person's
solemn deed, regarding which he/ she says
that he/ she signed, understanding it to be
something else. This plea is often described
as the mind not accompanying the
signatures. It is also familiarly referred to
in the world of law as non est factum. This
plea, on the basis of which the maker of a
solemn deed could avoid liability about the
disposition made, had its origin in the
English Law. The principle finds its
classical
statement
in
the
oft-quoted
decision of Byles, J. in Foster vs.
Mackinnon, [1869(4) C.P. 704]. It is held
there:
818 INDIAN LAW REPORTS ALLAHABAD SERIES

"it is invalid not on the ground of
fraud where fraud exists but on the ground
that the mind of the signor did not
accompany the signature: in other words,
that he never intended or contemplated to
sign, and, therefore, in contemplation of
law never did sign the contract to which his
name is appended."

The principle had a long history
of evolution in England and was always
recognized as distinct and different from a
plea to avoid a transaction on the ground of
fraud, duress or undue influence. There
was, however, no principle about reversal
of burden of proof, that obliged the
beneficiary of a transaction to prove its due
understanding by the maker of a solemn
deed, who alleged non est factum. The
principle about reversal of burden in the
case of pardanashin women, in the first
instance and its later extension to other
ignorant and illiterate women, as a distinct
class, entitled to that protection in the
matter of disposition of their rights in
property, was evolved by the Privy Council,
bearing in mind disabilities, associated with
the members of the beneficiary class.

32. The origin of the principle
about
reversal
of
burden
regarding
transactions entered into with pardanashin
women and the way it evolved about how
that burden was to be discharged, was the
subject matter of decision by the Supreme
Court in Mst. Kharbuja Kuer vs.
Jangbahadur Rai and others, AIR 1963
SC 1203. In the said decision, tracing the
origin of the rule and laying down by what
standard and in what manner that burden is
to be discharged, K. Subba Rao, J. (as His
Lordship then was) held:

"(5). ......... This proposition, in
our view, is clearly wrong and is contrary
to the principles laid down by the Privy
Council in a series of decisions. In India
pardahnashin ladies have been given a
special protection in view of the social
conditions of the times; they are presumed
to have an imperfect knowledge of the
world, as, by the pardah system they are
practically excluded from social intercourse
and communion with the outside world. In
Farid-Un-Nisa v. Mukhtar Ahmad, 52 Ind
App 342 at p. 350: (AIR 1925 PC 204 at p.
209), Lord Sumner traces the origin of the
custom and states the principle on which
the presumption is based. The learned Lord
observed:

"In this it has only given the
special development, which Indian social
usages make necessary, to the general rules
of English law, which protect persons,
whose disabilities make them dependent
upon or subject them to the influence of
others, even though nothing in the nature of
deception or coercion may have occurred.
This is part of the law relating to personal
capacity to make binding transfers or
settlements of property of any kind."

The learned Lord also points out:

"Of course fraud, duress and
actual
undue
influence
are
separate
matters."

It is, therefore, manifest that the
rule
evolved
for
the
protection
of
pardahnashin ladies shall not be confused
with other doctrines, such as, fraud, duress
and actual undue influence, which apply to
all persons whether they be pardahnashin
ladies or not.

(6). The next question is what is
the scope and extent of the protection. In
Geresh
Chunder
Lahoree
v.
Mst.
Bhuggobutty Debia, 13 Moo Ind App 419
(PC) the Privy Council held that as regards
documents
taken
from
pardahnashin
women the court has to ascertain that the
party executing them has been a free agent
and duly informed of what she was about.
The reason for the rule is that the ordinary
presumption that a person understands the
3 All. Vishram Shukla Vs. Smt. Rajdei & Ors.
819
document to which he has affixed his name
does not apply in the case of a
pardahnashin woman. In Kali Baksh v.
Ram Gopal, 43 Ind App 23 at p. 29 (PC),
the Privy Council defined the scope of the
burden of a person who seeks to sustain a
document to which a pardahnashin lady
was a party in the following words:

"In the first place, the lady was a
pardahnashin lady, and the law throws
round her a special cloak of protection. It
demands that the burden of proof shall in
such a case rest, not with those who attack,
but with those who found upon the deed,
and the proof must go so far as to show
affirmatively and conclusively that the deed
was not only executed by, but was
explained to, and was really understood by
the grantor. In such cases it must also, of
course, be established that the deed was not
signed under duress, but arose from the free
and independent will of the grantor."

The view so broadly expressed,
though affirmed in essence in subsequent
decisions, was modified, to some extent, in
regard to the nature of the mode of
discharging the said burden. In 52 Ind App
342 at p. 352: (AIR 1925 PV 204 at p. 210)
it was stated:

"The mere declaration by the
settler, subsequently made, that she had not
understood what she was doing, obviously
is not in itself conclusive. It must be a
question whether, having regard to the
proved personality of the settler, the nature
of the settlement, the circumstances under
which it was executed, and the whole
history of the parties, it is reasonably
established that the deed executed was the
free and intelligent act of the settler or not.
If the answer is in the affirmative, those
relying on the deed have discharged the
onus which rests upon them."

While affirming the principle that
the burden is upon the person who seeks to
sustain
a
document
executed
by
a
pardahnashin lady that she executed it with
a true understanding mind, it has been held
that the proof of the fact that it has been
explained to her is not the only mode of
discharging the said burden, but the fact
whether she voluntarily executed the
document or not could be ascertained from
other evidence and circumstances in the
case. The same view was again reiterated
by the Judicial Committee, through Sir
George Rankin, in Hem Chandra v.
Suradhani Debya, AIR 1940 PC 134.
Further citation is unnecessary. The legal
position has been very well settled. Shortly
it may be stated thus: The burden of proof
shall always rest upon the person who
seeks to sustain a transaction entered into
with a pardahnashin lady to establish that
the said document was executed by her
after clearly understanding the nature of the
transaction. It should be established that it
was not only her physical act but also her
mental act. The burden can be discharged
not only by proving that the document was
explained to her and that she understood it,
but also by other evidence, direct and
circumstantial."

33. The application of the rule,
regarding reversal of burden, governing
transactions by pardanashin women was
acknowledged to be extended to illiterate
and ignorant women by this Court in Paras
Nath Rai vs. Tilesar Kunwar, 1965 All.
L.J. 1080, which has been followed by this
Court in Laxmi Narain (supra). The
extension of the rule to an illiterate widow
was acknowledged by this Court in
Manohar Lal vs. Rajeshwari Devi and
others, AIR 1977 All 36.

34. The earliest origin for an
extension of the rule about reversal of
burden relating to pardanashin women to
other classes of women, subject to the same
disabilities,
though
not
strictly
820 INDIAN LAW REPORTS ALLAHABAD SERIES
pardanashin, had origin in the decision of
the Privy Council in Hodges and another
vs. Delhi and London Bank, Limited,
(1899-1900) XXVII Indian Appeals 168.
The suit that led to the appeal was about the
validity of certain transactions between a
traditional Indian women from Kashmir
(who had married a British Army Officer)
and a Bank, where she had dealt with her
shares, assigning them to the Bank, in order
to liquidate a loan, if required. The loan
appears to have been taken by her son, a
certain Colonel Oldham, from the Bank.
The loan agreement on the debtor's part
was signed by Colonel Oldham, Katherine
Hodges and one Captain Craster. The
Indian woman had lived as a British Army
Officer's wife, and in course of time had
become a widow. She had taken the name
of
Katherine
Hodges.
In
the
loan
agreement, though she was a party, the loan
was taken by her son, Colonel Oldham.
Katherine Hodges and Captain Craster
were understood to have stood sureties with
joint and several liability. In order to secure
the loan advanced to her son, Katherine
Hodges had handed over to the Bank
certain shares in other Banks, through a
letter written by her to the Bank. There was
also a power of attorney, authorizing the
Bank to sell the shares, in order to liquidate
the loan, in case conditions of repayment
were violated. After her death, there was
some default by Colonel Oldham. There are
other issues about discharge of sureties, but
all that is not relevant. The Bank brought a
suit to recover against the parties to the
loan agreement personally, and from the
estate of Katherine Hodges. On behalf of
the estate of Katherine Hodges, there was a
very interesting defence that she "was a
quasi purdanashin lady, of no education,
unable to read or write English, and quite
incapable of understanding the terms of the
three instruments in question; which were
not explained to her, and on which she had
no independent advice." (quoted verbatim
from the report of the judgment). The plea
in substance asked for extension of the
principle governing cases of dealings by a
third party with pardanashin women,
regarding disposition of their property or
interest. In answering the question, Lord
Hobhouse, speaking for the Board, held:

"In this part of the case there is
no discrepancy in the evidence except on
some small immaterial details, and none at
all in the findings of the two Courts. It is
abundantly clear that Mrs. Hodges was not
a pardanashin. The term quasipurdanashin
seems to have been invented for this
occasion. Their Lordships take it to mean a
woman who, not being of the pardanashin
class, is yet so close to them in kinship and
habits and so secluded from ordinary social
intercourse, that a like amount of incapacity
for business must be ascribed to her, and
the same amount of protection which the
law gives to pardanashin must be extended
to her. The contention is a novel one and
their
Lordships
are
not
favourably
impressed by it. As to a certain well known
and easily ascertained class of women, well
known rules of law are established, with
the wisdom of which we are not now
concerned. Outside that class it must
depend in each case on the character and
position of the individual woman whether
those who deal with her are or are not
bound to take special precautions that her
action shall be intelligent and voluntary,
and to prove that it was so in case of
dispute. Mrs. Hodges was an independent
woman of more than ordinary capacity for,
and experience in, dealing with property. It
would be very unjust to hold that the Bank
was bound to treat her on any other
footing." (Emphasis supplied)

35. The principle then, on which
the decision of the Privy Council turned,
3 All. Vishram Shukla Vs. Smt. Rajdei & Ors.
821
was not to extend the protection to illiterate
women or those who could not read, write
or understand English as a class, like
pardanashin women by treating them to be
what was dubbed as quasi pardanashin.
Rather, it was held that extension of the
protection, that is to say, reversal of burden,
in cases of such women, who were claimed
to be illiterate or otherwise not acquainted
with the ways of the world or as it is
described in later decisions as secluded
from the society, would depend in each
case on the character and position of the
person concerned.

36. In Sm. Sonia Parshini vs.
Sheikh Moula Baksha, AIR 1955 Cal 17,
Debabrata Mukharjee, J, speaking for the
Division Bench of the Calcutta High Court,
posed the following question, opening the
judgment:

"The question raised in this
appeal is whether a deed of sale executed
by an illiterate woman without the benefit
of independent advice is subject to the
same jealous scrutiny of the Court as an
instrument
executed
in
similar
circumstances by a pardanashin lady
strictly socalled."

His Lordship went on to hold
thus:

"(6) The substantial question here
is whether in the facts and circumstances
proved the plaintiff appellant could be held
to be entitled to this protection. This would
require examination of the reasons behind
the rule protecting transactions in which
paradanashin women are concerned. The
inhibitions imposed by social conditions
upon women of a certain well-defined class
bring in their train disabilities which have
compelled reversal of the rule that
ordinarily a person is to be held to his
contract. These disabilities are due largely
to
illiteracy
and
ignorance
which
superadded
to
restrictions
on
free
movement and contact with the world
outside induce a condition of helplessness
requiring the utmost vigilance to prevent
unfairness in a deal in which she is
concerned. The parties to the transaction
not being evenly placed, courts called upon
to pronounce on such transactions have
always jealously guarded against possible
unfairness. It has therefore come to be
recognised as a rule of law that a party
founding on a deed executed in such
circumstances has to establish intelligent
understanding of the deed and the burden is
not discharged by mere proof of the
execution of the document. Questions of
fraud or undue influence apart, the plain
requirement of the law in such cases is
clear proof of comprehension of the
contents of the document executed by her.

Such protection cannot plainly be
the exclusive privilege of the class
commonly known as pardanashin. The
parda with its inhibitions may be an
additional feature or element in the case but
the real reason behind the rule is lack of
understanding and appreciation of what an
illiterate
woman
without
independent
advice, is about. Where ignorance and
illiteracy are proved exposing the woman
concerned to the danger and the risk of an
unfair deal it would, we think, be a
perversion of the rule to deny in such case
the protection, despite the helplessness of
her state, merely on the ground that she is
not strictly pardanashin. It is quite
conceivable that a woman belonging to the
pardanashin class properly so-called may
in spite of the restraints of the parda have
sufficient understanding and appreciation
of the contents of a document to which she
is a party. In such case there can be no
question of the protective cloak being
thrown around her and she cannot be heard
to plead her 20 pardah in avoidance of the
transaction. The criterion cannot be the
822 INDIAN LAW REPORTS ALLAHABAD SERIES
social status implied in the pardah class but
the ability to comprehend the contents of
the document in question and the means or
opportunities of such comprehension. The
emphasis
must
be
on
the
factual
understanding of the document with
reference to the individual concerned and
not upon presumptive disability incidental
to mere status. (Emphasis supplied)

37. To the understanding of this
Court, this rule has been approved to apply
to the identified class of women, called
pardanashin on a presumptive basis. In
dealing with pardanashin women, the rule
appears to be that the beneficiary of
transactions from such women, where they
deny the transaction or plead non est
factum, must discharge the burden to
affirmatively prove that the executor of the
document understood what the transaction
was, as also its terms broadly. Even in case
of
pardanashin
women,
there
are
noticeable remarks in the authorities which
indicate that in a given case, it could be
shown
that
a
particular
pardanashin
woman, though properly a member of that
class, was wordly-wise, and, therefore, not
entitled to a protection of the rule about
reversal of burden. In course of time, the
rule has been extended to other ignorant
and illiterate women, who are similarly
circumstanced and subject to the same
disabilities as pardanashin women. The
raison d'être to extend protection of the rule
in question as remarked in Sm. Sonia
Parshini, is not a membership of the class,
known as pardanashin women, but the
presumed inability of members of that class
to
comprehend
the
nature
of
the
transaction, they have gone about due to
myriad
factors,
that
inhibit
their
understanding. For the same reason, the
protection has been extended to women
who are ignorant and illiterate and
frequently described as unacquainted with
the ways of the world.

38. This Court cannot ignore to
refer to a decision of the Madras High
Court in Chidambaram Pillai and 3
others vs. Muthammal and another,
(1993) 1 M.L.J. 535, which undertakes a
most comprehensive review about the law
on the subject of reversal of burden in case
of pardanashin women and other illiterate
women. The decision in Chidambaram
Pillai (supra) expounds the principle that
the protection is available to illiterate
women in the same manner as pardanashin
women. Their Lordships of the Division
Bench in Chidambaram Pillai (supra)
have expounded and summarized the
principles about extension of the rule
regarding reversal of burden to illiterate
women, thus:

"16. The pardah system as
understood by the courts in India is not the
system of keeping a woman under a veil
indoors in zenana, but in seclusion, away
from the knowledge of the world, in the
sense that they are not ordinarily allowed to
interact with the male folk and are kept
away
from
social
intercourse
and
communion with the outside world. The
view of the Lahore Court in the case of
Favvar-ud-din
v.
Kutab-ud-Din1
had
almost worked as an alarm for the courts to
develop a sense that any strict meaning to
parda was going to exclude a greatly
deprived section of the society from the
protection cloak of the law, namely, the
illiterate women and other women having
such infirmities that they practically live
without
any
social
intercourse
and
communion with the outside world. The
judicial consensus, as we have already
noticed, has been expressed thus:--

"The rules regarding transaction
by the Pardanashin apply equally to
3 All. Vishram Shukla Vs. Smt. Rajdei & Ors.
823
illiterate women though they may not be in
a strict sense Pardanashin."

A Pardanashin may not be
illiterate, but she still may be ignorant in
the sense that she has an imperfect
knowledge of the world, and she is
practically excluded from social intercourse
and communion with the outside world.
Her ignorance is the curse of a social usage
that womenfolk depend upon malefolk for
transaction of their business with the
outside world. Thus, not all women, but
only those who are practically excluded
from social intercourse and communion
with the outside world fall in this category.
If it is for this reason that they are taken as
persons suffering from disabilities which
make them dependent upon or subject to
the influence of others, the illiterate women
who, for the reason of social compulsion
are required to move out to work in the
fields and elsewhere for livelihood, cannot
be said to be less disabled and deprived.
Even if they are intelligent to know where
to go and how to earn their livelihood, yet
they cannot read anything nor write
anything, and unless told about the contents
by others, will not know what the
document contains. To the extent the
character, content and the effect of the
document are concerned, she has to be
presumed to be ignorant by sheer illiteracy,
the curse which is still pervading the
ancient society particularly the women
living in this part of the country, a fact
about which, we think, we are competent to
take judicial notice. We find ourselves in
complete agreement with the view that the
special cloak of protection applied to
Pardanashin women has to be applied to
illiterate women as well."

 (emphasis supplied)"

22.