# MST. KHARBUJA KUER v. JANGBAHADUR RAI

- **Citation:** [1963] 1 S.C.R. 456
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Case number:** CIVIL APPELLA'rE JURISDICTION : Civil Appeal No. 522 of 1959
- **Bench:** A. K. Sarkar, K. Subba Rao, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mst-kharbuja-kuer-v-jangbahadur-rai-2604
- **Pages:** 14

## Headnote

Pardanashin
lady-Execution of deed-Binrling
nature-Burden of proof.
R, the husband of the appellant, had separated from
his uncle J. in 1924. After the death ofR, J got a maintenance deed executed by the appellant containing recitals
that there had been no separation between R. and J. The
appellant filed a suit for a declaration of her title to the
property and for a declaration that the deed having been
got executed by fraud was not binding on her. The trial
court decreed the suit holding that R and J had separated,
that the appellant was an ignorant pardanashin lady and
that she did not execute the deed after understanding the
contents thereof. On appeal the first appellate court con·
firmed the findings and decree.
In second appeal the High
Court reversed the findings of facts on the ground that the
onus was on the appellant "'prove that the deed had been
got executed by fraud. The appellant CQntemled th11t the
1 S.C.R.
SUPREME COURT REPORTS
467
High Court was wrong on the queition of burden of proof
and that it had no jurisdiction to interfere with the findings
of facls.
Hel<l, that the High Gourt was not justified in interfering in second appeal with findings of fact of the first two
Court$ and it had wrongly placed t)le onus on the appellant.
The burden of proof was always upon the person who sought
to sustain a transaction entered into with a pardanashin
lady to establish that the document was executed by her
after clearly understanding the nature of the transaction. It
had to be established not only that it was her physical act
but also that it wa~ her mental act. The burden could be
discharged not only by proving that the document was
explained to her and that she understood it, but also by
ot,b.er evidence, direct and circumstantial.
FaridUn-Nisa v. Mukht,ar Ahmed, (1925) L. R.
52
I. A.
34:!,
Geresh
Ohunder
Lahoree
v.
Mst. Bhuggobutty Debia, (1870) 13 M. I. A. 419,
Kali Baksh v. Ram Gopal, (1913) 41 I. A. 23 and
Jagad,ish Chandra v. Debriath, A. I. R. 1940 P. C.
134, referred to.
CIVIL APPELLA'rE JURISDICTION : Civil Appeal
No. 522 of 1959.
Appeal by special leave from the judgment
and decree dated December 2, 1957, of the Patna
High Court in S. A. No. 791 of 1963.
D. P. Singh, for the appellant.
Sarjoo Prasad and
K. P. Gupt,a, for the
respondents.
1962. April 9. The Judgment of the Court was
. delivered by
SUBBA RAo, J.-This appeal by special leave
is preferred against the judgment of a single Judge
of th~ Patna High Court. The facts that gave rise
to thlB appeal may be briefly stated. To appreciate
the findings of the various courts and the conten1962
Msl. Kharbujq Ku1r
v,
J a11gbahadur Rai
Subba RooJ.
1962
Md. ElltUbuja Kutr
••
Janghali.adur Rri
Subba R•oJ.
458
SUPREME OOUR'I' REPORTS [1963]
tions of the parties, the following genealogy will be
use fut
Ramie.I Rai
I
--------------
I
Jamuna Rai
Ka.sida Kuer (deceased)
I
Rameshwar Rai (deceased)
Mst. Kharbuja Kuer (Plff.)
I
I
I
Jangba.hadur Rai
(D 1)
---
l I
1
Jugeshar Rai
Rambirchh Rai
Mahesar Rai
(D 2)
(D 3)
(D 4)
The case of the plaintiff, who is the widow of Ramesh war Rai, is that her husband and Jangbahadur,
defendant 1, effected a partition of the family pro·
perty in or a.bout 1924, that after the partition he
was in exclusive possession of the property that fell
to hie share, that he died in the year 1930, that
thereafter she and her mother·in·law continued to
be in poBBeBSion of the said property, that her
mother-in-law died in 1938, that the first defendant
asked her and her mother· in-law to execute a power
of attorney in his favour, that they, being pardha.-
nashin ladies, executed a document in his favour on
August 24, 1935, believing it to be a power of attorney, that subsequently they came to know that it
was a maintenance deed containing false recitals to
the effect that thare was no separation and that the
property was joint family property.
They also
alleged in the plaint that the deed in question was
never read out to them, that the scribe and t

## Text

19~1
The Nigh CtnJrt,
Calculla
••
Amal Kumar Roy
Sinha C.J.
456
SUPREME COURT REPORTS [1963)
defendants-appellants allowed the case to be decided against them without placing all relevant
considerations before the Trial Court, particularly
the fact that r. 55-A did not apply to members of
the State Judicial Service, we direct that each
party will bear its own costs, here and below. The
appeal is accordingly allowed, but without costs.
Appeal allowed.
MST. KHARBUJA KUER
v.
JANGBAHADUR RAI
(A. K. SARKAR, K. SUBBA RAO and
J. R. MUDHOLKAR, JJ.)
Pardanashin
lady-Execution of deed-Binrling
nature-Burden of proof.
R, the husband of the appellant, had separated from
his uncle J. in 1924. After the death ofR, J got a maintenance deed executed by the appellant containing recitals
that there had been no separation between R. and J. The
appellant filed a suit for a declaration of her title to the
property and for a declaration that the deed having been
got executed by fraud was not binding on her. The trial
court decreed the suit holding that R and J had separated,
that the appellant was an ignorant pardanashin lady and
that she did not execute the deed after understanding the
contents thereof. On appeal the first appellate court con·
firmed the findings and decree.
In second appeal the High
Court reversed the findings of facts on the ground that the
onus was on the appellant "'prove that the deed had been
got executed by fraud. The appellant CQntemled th11t the
1 S.C.R.
SUPREME COURT REPORTS
467
High Court was wrong on the queition of burden of proof
and that it had no jurisdiction to interfere with the findings
of facls.
Hel<l, that the High Gourt was not justified in interfering in second appeal with findings of fact of the first two
Court$ and it had wrongly placed t)le onus on the appellant.
The burden of proof was always upon the person who sought
to sustain a transaction entered into with a pardanashin
lady to establish that the document was executed by her
after clearly understanding the nature of the transaction. It
had to be established not only that it was her physical act
but also that it wa~ her mental act. The burden could be
discharged not only by proving that the document was
explained to her and that she understood it, but also by
ot,b.er evidence, direct and circumstantial.
FaridUn-Nisa v. Mukht,ar Ahmed, (1925) L. R.
52
I. A.
34:!,
Geresh
Ohunder
Lahoree
v.
Mst. Bhuggobutty Debia, (1870) 13 M. I. A. 419,
Kali Baksh v. Ram Gopal, (1913) 41 I. A. 23 and
Jagad,ish Chandra v. Debriath, A. I. R. 1940 P. C.
134, referred to.
CIVIL APPELLA'rE JURISDICTION : Civil Appeal
No. 522 of 1959.
Appeal by special leave from the judgment
and decree dated December 2, 1957, of the Patna
High Court in S. A. No. 791 of 1963.
D. P. Singh, for the appellant.
Sarjoo Prasad and
K. P. Gupt,a, for the
respondents.
1962. April 9. The Judgment of the Court was
. delivered by
SUBBA RAo, J.-This appeal by special leave
is preferred against the judgment of a single Judge
of th~ Patna High Court. The facts that gave rise
to thlB appeal may be briefly stated. To appreciate
the findings of the various courts and the conten1962
Msl. Kharbujq Ku1r
v,
J a11gbahadur Rai
Subba RooJ.
1962
Md. ElltUbuja Kutr
••
Janghali.adur Rri
Subba R•oJ.
458
SUPREME OOUR'I' REPORTS [1963]
tions of the parties, the following genealogy will be
use fut
Ramie.I Rai
I
--------------
I
Jamuna Rai
Ka.sida Kuer (deceased)
I
Rameshwar Rai (deceased)
Mst. Kharbuja Kuer (Plff.)
I
I
I
Jangba.hadur Rai
(D 1)
---
l I
1
Jugeshar Rai
Rambirchh Rai
Mahesar Rai
(D 2)
(D 3)
(D 4)
The case of the plaintiff, who is the widow of Ramesh war Rai, is that her husband and Jangbahadur,
defendant 1, effected a partition of the family pro·
perty in or a.bout 1924, that after the partition he
was in exclusive possession of the property that fell
to hie share, that he died in the year 1930, that
thereafter she and her mother·in·law continued to
be in poBBeBSion of the said property, that her
mother-in-law died in 1938, that the first defendant
asked her and her mother· in-law to execute a power
of attorney in his favour, that they, being pardha.-
nashin ladies, executed a document in his favour on
August 24, 1935, believing it to be a power of attorney, that subsequently they came to know that it
was a maintenance deed containing false recitals to
the effect that thare was no separation and that the
property was joint family property.
They also
alleged in the plaint that the deed in question was
never read out to them, that the scribe and the
attesting witne880s were partisans of the first defendant. It wae also alleged that the document was
I S.C.R.
SUPREME COURT REPORTS
459
always in the custody of the first defendant, that
the plaintiff and her mother-in-law, till the latter's
death, were getting the income from the property
as they were getting before the execution of the said
document and that they came to know of the fraud
only in 1355 fa.sli, when the first defendant began to
interfere with the possession and occupation of the
property by the plaintiff and disclosed to several
people that she had only a right to maintenance
and thereafter when she got the document read
over to her and discovered t.he fraud. With those
allegationa, among others, the plaintiff filed a suit
in the Court of the Munsif, Muza.ff arp1;1r, for the
following reliefs:
"On a consideration of the aforesaid facts
and also on adjudicating -the plaintiff's title
and the absence of title of the defendants; it
may be adjudged by the court that tha deed of
agreement for maintenance is altogether
fraudulent and not binding upon the plaintiff."
The relief claimed is rather involved,-but in substance it is a relief for a deolf)r&tion-oftheplaintiff's
title to the suit property and for a declaration that
the maintenance deed, having been executed by
fraud, was not binding on her.
The defendant
denied the allegations contained in the plaint
and alleged that the deed of maintenance was
read over and explained to the plaintiff and her
mother-in-law and that one Babu Ramnath Singh,
brother of the plaintiff, was present at the. time of
the execution and affixed his signature on behalf of
the plaintiff. He denied that he had committed
any fraud. On the pleadings the following issues,
amoDg others, were framed:
laaue No. 3-'•ls the allegation of separation between_ Rameshwar Rai and defendant
1962
Msl. Eharbuja Krur
v.
Jang/Jr,,hadur Ra;
SdbaRaoJ.
19GI
~\f5t. Kharhuja Kutr
v.
Jarigbahadur R•i
Subba BaoJ.
460
SUPREME COURT REPORTS [1963j
No. l in the month of Asardh 1334 Fs. (19~ 7)
correct?"
Issue No. 4-"Is the document <lated
24-8-1935 legal and valid? \Vas the same
read over to the plaintiff and the plaintiff
executed it with the full knowledge of the
contents?"
Issue No. 5-" Are the plaintiffs entitled
to the reliefs claimed?"
It will be seen from the issues that the burden of
proof to establish separation was placed on the
plaintiff and that to prove that the document was
read over to the plaintiff and executed by her
with full knowledge of the contents was laid on the
defendant.
On a consideration of the entire evidence, the
learned Munsif found on issues 3 and 4 that
Rameshwar Rai died in state of separation from
Jangbahadur, that the plaintiff and her mother-inlaw were ignorant pardhanashin ladies, that the two
ladies had. full confidence in the 1st defendant, and
that the document, Ex. C. was not read over to the
plaintiff and she did not execute it after understanding the contents thereof. On those findings the suit
was decreed in terms of· the plaint prayer. On
appeal, the learned Subordinate Judge considered
the entire evidence over again and accepted the
said two findings given by the learned Munsif
and confirmed the decree.
But,
on second
appeal,
Imam, J., set aside the concurrent
findings
of the
two courts mainly on
the
ground that the courts had thrown the burden of
proof wrongly on the defendant. In the words of
the learned Judge, "it was the duty of the plaintiff
to prove that there was fraud committed and as
that had not been established the question whether
the document had been read over and explained to
the plaintiff, in my opinion, in the circumstances,
I S.C.R.
SUPREME COURT :B.EPORTS
461
does not arise." He considered the evidence from
that standpoint and held that the plaintiff had not
established her ease; and on that finding, he dismissed the suit.
Mr. D. P. Singh, learned counsel for the appellant, raised before us two contentions, namely, ( J)
the learned Judge of the High Court was wrong Gn
the question of burden of proof; and (2) tho learned
Munsif and the ]earned Subordinate tT udge had not
only thrown the burden of proof rightly on the defendant, but they had also given their :findings on the
entire evidence, an~ therefore the burden of proof
became immaterial and the findings of fact given by
the said courts were binding on the High Court, under
s. 100 of the Code of Civil Procedure.
Mr. Sarjoo Prasad, learned counsel for the
respondents, on the other hands, contends that the
finding on the question of separation was halting
and was clearly illegal, not having been based on
evidence, either oral or documentary, and that
though
the
initial
burden
to
prove
that
the document was read over and explained to the
widows was on the defendant, the evidence aud the
circumstances of the case cle!trly discharged that
burden.
It is settled law that the High Court has no
jurisdiction to entertain a second appeal on the
ground of erroneous finding of fact. In the instant
case the learned Munsif and, on appeal, the learned
Subordinate Judge found concurrently that the two
widows put their thumb marks without understand·
ing the true import of the document.
Imam, J., in
second appeal reversed the said findings on the
ground that they were vitiated Ly an erroneous
view of the law in the matter of burden of proof.
The judgment, if we may say so with respect, consists of propositions which appear to bu contradictory. The learned ,Judge, after reviewing the case
1962
M st. Kharbuja Krier
v.
Jungbahadur Roi
Subba Rao J,
M 11. 11".Wb~fa Kue•
v.
Jallg/lllhadur R•i
SubbaR,.J,
462
SUPREME COURT REPORTS [1963]
law on the subject, concludes his discussion by holdi~g that it was the duty of the plaintiff to prove
that there was fraud committed and that, as that
had not been established, the question whether the
document was read over and explained to the
plaintiff, in his opinion, in the circumstances, did
not arise. This proposition, in our view, is clearly
wrong and is contrary to the principles laid down
by the J!rivy 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 FaridUn-Nisa v. Mukht.ar Ahmad('), 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 inflm·nce 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 a.nd actual undue
influence a.re separate matters".
It is, therefore, manifest that the rule evolved for
the protection of pardabnashin ladies shall not be
confused with other doctrines, such as fraud, dureBB
and actual undue influence, which apply to all
t.J)
(1925) L.R. 52 I.A. 342, 350, 352.
1 S.C.R.
SUPREME COURT REPORTS
463
persons whether
they be pardanashin ladies or
not.
The next question is what is the scope and
extent of the protection. In Geresh Ohuruler Lahoree
v . .Mst. BhuggobuUy Debia (') the Privy Council held
that as regards documents takeh from pardanashin
women the oourt has to ascerta.in that the party
executing themhad 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 document to which he has affixed
his name does not apply in the case of a pardanashin woman. In Kali Baksh v. Ram Gopal (2 ), the
Privy Council defined the scope of the burden of a
person who seeks to sustain a document to which
a pardanashin lady was a party in the following
words:
"In the first place, the lady was a pardanashin 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
oases it must also, of course, be established
that the deed W!Mt not signed under duress, but
arose from the free and independent will of
the gra.ntor".
The view so broadly expressed, though affirmed in
essence in eubsequ~nt decisions, was modified, to
some extent, in regard to the nature of the mode
of discharging the said burden. In Farid-Un-Nw
v. M ttkkl4r Ahmad (•)it was stated :
"The mere declaration by the settlor,
(I) [1870) 13 M. J. A. 419.
(~) [1918) 41 I . ..A. 23, 29,
(3) (1925) L.ll. S2. I. A. 342. 3501 ~52.
.
196B
Mat .. Eharbuja KU1r
••
J angb ahiMlu.r Rai
Subba &o J.
Mil. Klul,huja Kun
••
Jargb.i.adu. Kun
SulllaRa.J.
464
SUPREME COURT REPORTS [1963)
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 settlor, the nature of the settlement, the 9ircumstances under which it was
executed, and the whole history of the parties,
it is reasonably esta blised that the deed
executed was the free and intelligent act of
the settlor 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 pardanashin 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 Jagadieh
Chandra v. Debnath ('). Further citation is unneces·
sary. 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 parda·
nashin 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 hl'lr
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.
If that be the law, a perusal of the judgments
of the three courts demonstrates that while the
(I) A.!.R. 1940 P.C. 134.
I f
(
\
'
1 S.C.R.
SUPREME COURT REPORTS
465
learned Munsif and the learned Subordinate Judge
approached the case from a correct perspective, the
High Court misled itself by a wrong approach. The
relPvant issue we have already extracted
~hows
that the burden was thrown upon the defendant.
The first two courts approached the evidence from
that standpoint and gave a concurrent finding that
it had not been established that the plaintiff executed the document after understanding the nature of
the transaction.
Apart from the burden of proof,
also on the facts found they came to the same
conclusion. The- High Court. having wrongly held
that the approach of the two courts was not correct
and having wrongly thrown the burden upon the
plaintiff considered the evidence afresh and set
aside that finding.
As the two courts approached
the evidence from a correct perspective and gave
a concurrent finding of fact, the High Court had no
jurisdiction to interfere with the said finding.
Learned counsel· for the respondents contends
that on one of the crucial findings whioh influenced
the first two oourts in coming to the conclusion
which they did,.. namely, the finding on the partition
in the family, was not based on evidence and that,
indeed, both the parties agreed that that question
was irrelevant to the main question raised in the
suit.
He further said that the learned Munsif,
having rightly held that the burden of proof to
establish sepa.ration was on the plaintiff and.having
held that there was no acceptable ora] evidence
and that the documentary evidence adduced was
not sufficient to sustain partition, should have found
that the presumption under the Hindu law was not
rebutted. It is true that before the learned Munsif
the Advocates appearing for the parties contended
that it was not necessary to give any finding on
issue No. 3 and that the suit could be disposed of
without giving any finding thereon. But the learned Munsif rightly did not accept .the said suggestion
,.lld beld that the isaqe ha.d been framed ou tho
JHI
Mil. Kbarbrg• Kwr
v.
J angfl•/ladur Roi
Sr/J/JG Rao J.
I96B
M.d. Kharhuja Kuer
v.
Jangbahadur Rai
Subba Rao J.
466
SUPREME COURT RE.PORTS (1963)
pleadings and that all the relevant evidence had
been adduced and that it was only proper to give
a finding thereon. The learned Subordinate Judge
pointed out that the main point for consideration
was not the matter of jointness or separation, but
only the validity or genuineness of the deed itself,
and that "the question of separation or jointnesa
thus only becomes a link in the chain to judge the
validity or otherwise of the document, Ex. C".
This statement of the learned Subordinate Judge
is unobjectionable. The question of partition in
the family was a circumstance which would have
an important bearing on the question of probability
of the widows executing a document admitting that
there was no partition in the family and that they
had no absolute interest in the said property.
Now coming to the evidence, we cannot
accept the argument of learned counsel for the
respondents that there was no evidence in the case
to rebut the presumption of Hindu law that a
family is joint. The learned Munsif said that there
was no documentary evidence on behalf of the
plaintiff to prove separation; by that statement he
meant that the partition was not effected by a
written document, for the next sentence made it
clear when he ea.id that it was due to the fact of
alleged oral partition.
Then he considered the
documents filed by the defendants in great detail
and came to the conclusion that the said documents
were not inconsistent with partition.
Then he
discussed the oral evidence.
He had considered
the evidence of five witnesses examined on behalf
of the plaintiff and of seven witnesses examined on
behalf of the defendants. He also noticed pieces
of circumstantial evidence. After considering the
entire evidence, oral, documentary and circumstantial, he came to the following conclusion :
"Although the oral evidence on both the
11ides on the point of jointness and sepa.raiioJJ
1 S.C.R.
SUPREME COURT REPORTS
467
is not satisfactory but from the circumstances
adduced from the facts of the case I
am
convinced that Remeshwar died in states of
separation from Jangbahadur."
It cannot be said from the said finding that he
rejected the oral evidence.
It may be that the
oral evidence adduced on behalf of the plaintiff was
not as satisfactory as it should be, but he preferred
that evidence, which supported partition, in view
of the circumstances found on the evidence. The
finding, whether it is correct or not, is certainly a
finding of fact and it cannot be said that it is not
based on evidence.
Now coming to the appellate court, the learned
Subordinate
Judge reviewed the entire
evidence, oral, documentary and circumstantial,
and arrived at the following :findings :
' 1ln view of the facts and the circumstance narrated above, while the probabilities
1tre that there was a disruption in the joint
family of Ramesh war and J angbahadur as
alleged by the plaintiff, the defendants have
failed to prove beyond all doubts that the
family continued to be joint at the time of
Rametthwttr's death, or that they came in
exclusive possession of the properties
left
behind by him. Judging Ex. C, in this light,
we find that if the fact of separation between
Ra.rneshwar and ,Ja.ngbahdur as alleged by
the plaintiff, be accepted to be true, as has
been shown above, then the fraud in the
execution of this document is patent, and no
discussion is required to declare it as a forged
and fradulent document."
It is true the finding could havo been more explicit,
but tha.t does not detract from its finality. In tho
first part of the finding, the learned Subordinate
Judge says in effect that, having regard to the facts
a,ni c! ro1up.st~llces he had discussed earlier t4(}
198B]
Msl. KAarbiga KU11
••
J ongba/ladur R~
Su66a RaoJ.
1962
Mse. KliarbujiJ K~
••
Jangbahadur Rai
Subba Rao J.
468
SUPREME COURT REPORTS [1963]
burden shifted to the first defendant, who did not
adduce acceptable evidence to
dislodge
the
circumstances against jointness. But in the second
part of the finding he mak~s it clear that he had
found that there was partition in the family.
The
finding is again a finding of fact. That a part, the
High Court did not in any way
question the
correctness of the finding of the learned Munsif and
the learned Subordinate Judge, but only ignored it
on the ground that it was not the duty of the
lower appellate court to deal with that question at
all. We cannot appreoiate the observations of the
learned Judge of the High Court, for, in our view,
that finding, as the learned Mun8if
pointed
out, arose on the plea.dings and, as the lower appE>llate court pointed out, had a direct impact on
the main question to be decided in the case.
We,
therefore, hold that the said finding was binding
upon the High Court.
Even if that finding was ignored, there was
sufficient material to sustain the finding of the first
two courts.
Both the courts found that the first
defendant, on whom the burden lay, not only did
not establish that it was executed by the plaintiff
with the knowledge of its contents, but that even
apart from the burden of proof, that they also
found that the plaintiff and her mother-in-law put
their thumb marks on the decument under the
impreasion that it was a power of attorney. The
finding is one of fact and was based upon the
following relevant facts : ( l)
The plaintiff and
her mother-in-law were pardanashin and illiterate
women-one of them was old and the other was
middle-aged.
(2) They had full confidence in the
first defendant.
('I) Babu Ramnath
~ ingh, who
wrote the names on the document was not proved
to be the brother of the plain tiff.
( 4) The document was in the custody of the defendant.
(5) The
plaintiff and her mother-in-law were in enjoyment
of the property as they were enjoying it 11veu
1 S.C.R.
SUPREME COUR1
1 REPORTS
469
before the execution of the document.
(6) The
1961
defendant had not examined either Babu Ramnath
Mst. Kharbuja Kuer
Singh or other important witnesses who could have
v.
J angbohadur Rai
proved the fact that the plaintiff and her motherin-law had the knowledge of the nature of the
Subba Rao'·
dooument.
(7)
The defendant managed to get
this docum~nt by fraud to facilitate mutation of
the property in his name. ·And ( 8)
the plaintiff
gave acceptable evidenca in support of her cas'3.
The finding of the both the courts is supported by
evidence, and there is no permissible ground for
interference with it in second appeal.
For the aforesaid reasons, we find that the
learned Judge of the High Court had erroneously
interferred with the concurrent findings of fact '
arrived at by the first•two courts. In the result, we
allow the appeal, set aside the decree of the High
Court and decree the suit with costs throughout;
Appeal allowed.
NAWAB ZAIN YAR JUNG AND OTHERS
11ss
v.
.4pril 9.
THE DIRECTOR OF ENDOWMENTS AND
ANOTHER
(B. P. SINHA, c. J., P. B. GAJENDRAGADKAR, K. N.
WANCHOO, N. RAJAGOPALA AYYANGAR and
T. L. VENKATARAMA A!YAR, JJ.)
Trust Properly-Wale/ and Public Oharitable
Tt"UB~
Distinction-Rule of interpretation of documents -The W akJ
Act, 1954 (29 of 1964), ss. 3(l), 9, 28-Hyderabad Etulowment
Regulation, 1348-F (1939).
The appellants were appointed trustees by the Nizam of
Hyderabad by a trust deed executed on June 14, 1954. On
March 2, 1959, respondent No. l, who was the Director of
Endowments and Joint Secretary, Board of Revenue, served a
notice on the appell~11ts calling- upon them to re~ister the s~i4