The Oudh cases. Containing cases decided by the Court of the judicial commissioner of Oudh .. online

it be more than 30 years old and purports to come from proper custody and
that under the circumstances of the present case the discretion was rightly
exercised.



LordDavby:— • ♦**♦*♦•
The other qaestion which has been pot before their Lord-
ships as a matter of law is the admissibility of the Exhibit F6.
That document, if proved to be a genuine statement of Nawab
Ali, would go a long way towards establishing the appellant's
case. But both the Courts in India have rejected it. It is
a document purporting to be dated on a Mohamedan date
corresponding to the 25th April 1865. It purports to bo
a letter written by Nawab Ali in his own hand, and signed
by himself, addressed to the Peshkar or keeper of the public
records of the Collector. It is produced out of the custody of
the Deputy Collector. Under these circumstances, the docu-
ment being more than 30 years old, the provisions of section 90
of the Indian Evidence Act are applicable and the Court may
presume the genuineness of it without proof. Section 90 says: —
" The Court may presume that the signature and every other
" part of such document which purports to be in the handwriting
" of any particular person is in that person's handwriting." What
* Present -.^Lords Davey and Bobertson and 8ir Arthur Wilson.



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291



is meant by " the Court may presume " a document to be
genuine, is shown by section 4 of the Act, which is in thefee
terms : — " Whenever it is provided by this Act that the Court
*' may presume a fact, it may either regard such fact as proved
" unless and until disproved, or may call for proof of it." Tho
learned Judge in the Civil Court called for proof of the docu-
ment, but no proof was forthcoming. It is one of the remark-
able things in this case that the plaintiff did not give any
evidence of her own, and no witness was called on her part who
was acquainted with Nawab Ali's handwriting to say whether
the document was in his handwriting or not. Therefore it may
be taken, that unless it can be admitted to evidence under section
90 of the Evidence Act, there is no proof of the genuineness
of the document. On the other hand there are circumstances,
both internal and external, which throw great doubts u[)on the
genuineness of the document. It is said that the plaintiff was
Nawab Ali's adopted daughter, brought up by him, and that she
was in receipt of proper maintenance and support out of the
income of his estate. There is no evidence of those facts, and if
evidence could have been given of those facts, one would
have thought that the appellant would have given such evidence,
as it might have a material bearing upon her case.

Under these circumstances, their Lordships are not surprised
that the Judges, both in the Civil Court and the Court of the
Judicial Commissioner, exercised the discretion which is vested
in them by section 90, by not admitting the document to
evidence without formal proof, although it is more than 30 years
old, and purports to come from the proper custody. It should
be added that the Court considered that there was evidence in
the case which it is not necessary to go into and to which, in
fact their Lordships' attention has not been pointedly drawn
which raised great suspicions as to the document itself. Their
Lordships would always be extremely slow to over-rule the dis-
cretion exercised by a learned Judge under section 90 of the
Act, and certainly this is not a case in which they would be
disposed to do so. * * * * * * • *



^fusammat;

Shafiq-ua-

nisa

r.

Ehan

Bahadur Baja

Shaban All

Khan.



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29a TJIE OUDH CASES. [Vol. VIL

FIRST CIVIL APPEAL, No. 108 OF 1903. •



Before Mr. Scott and Mr, Chamier.



1904. MuSAMMAT Sakina Bbgax and others (Defendants) tf.

Mab. 7. Lala Indbr Pebbhad and others (Plaint^s).



Pardanashin Mooman^ dental of execution of deed hy — Burden
of proof upon plaintiff when pardanashin woman denies execu^
tion of deed'^Rule regarding case in which pardanashin women
are sued upon deeds alleged to be executed by them.



In a suit on a mortgage-bond dated JDocember 2ath 18^ alleged to have
been executed in &Your of the plaintifEs by l^e defendant, a pardanashin
woman, and her hosband it was contended by the defendant that she and her
part of the mortgaged property were not boond by the deed. Her defence in
her written statement was that she had had no occasion to borrow money of
the plaintiiEs, that she had borrowed none, and that she did not execute the deed
and knew nothing about it. The qtiestion was whether a mere denial of ** exe-
cution " by a pardanashin woman against whom a deed Is brocrgfat to be
enforced is suflSeient to cast upon the plaintiff the duty of proving that tlie
woman not only set her hand to the deed but understood what she was doing.
Heldf that in such cases it is incumbent upon the plaintiff to proTe that the

woman received the consideration stated in the deed and executed the deed

with knowledge of its effect upon her interests.

The rule as to pleading in cases in which a pardana$hin woman is sued
upon MS this: — If she admits having execnted the deed she must plead
definitely that it is not binding upon her so as to give the plaintiff notice of the
position which «be intends to take. If she denies having executed the deed
the plaintiff must prove not only the factum ol meehanieal execution by her
but also that she signed it with knowledge of its bearing upon her iatereets.

Upon the evidence in the case the Court held that it was not proved
that the defendant received any part of the tsoBfiideration for the mortgage-
deed in suit or that she caused her seal to be affixed to the deed or that
she understood the transaction or had any means of doing so.

* Against the decree of Pandit Suraj Xarain, Surbordinate Judge, LacknoWc

~'iatM I'^th Argost. 1903.



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For Appbllant.— Sheikh Ali Abbas and S. ShahansJiah
Husain,

For Respondent.— M. Mohammad Nasim and Pt Janki
Nath.

Chamier, a. J. C— This was a suit on a mortgage bond
dated December 20th, 1897 alleged to have been executed in
favour of the plain tiffs by the defendant Sakina Begam and
ber husband Mohammad Baza Khan who died on December
14th 1900 and is represented in this suit bj Sakina Begam
and the other seven defendants. Part of the property mort-*
gaged belonged to Mohammad Baza Khan and so far as that
part is concerned the suit was not contested in this Court
although several of the defendants put the plaintiffs to proof
of their case in the Court below and have joined in this appeal.
The remainder and the more valuable part of the property
mortgaged belongs to Sakina Begam and the only question
for decision is whether she and her part of the mortgaged
property are bound by the deed. Her defence in her written
statement was that she had had no occasion to borrow money
of the plaintiffs, that she had borrowed none and that she did
not execute the deed and knew nothing about it.
The issues fixed were in these terms :— ^

(1) Whether the mortgage bond in question was executed
by Mohammad Baza Khan and Sakina Begam with considera-
tion or the latter did not execute it nor did she receive its
consideration ? (first on plaintiffs, second on defendant I)

(2) Whether or not Sakina Begam defendant I is bound
by the mortgage bond in question ?

(3) To what relief and against which of the defendants
are the plaintiffs entitled ?

It was contended before us by her pleader that in order
to succeed as against Sakina Begam the plaintiffs had to prove
not only mechanical execution of the deed by her but also
that she understood what she was signing and the effect that



Musammat
Sakina

Begam aad
others

Lata Inder

Pershad
and otherf.



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294



THE OUDH CASES



[Vol VTI.



Masammat

Sakina

Begam arid

others

r.

Lala Inder

Pershad
and others.



the deed would have upon her interests. For the plaintiffs it
was urged that as Sakina Begam denied only the factum o£
execution and had raised no question as to her knowledge oE
its effect on her interests the plaintiffs had only to prove that
she signed the bond. It is cletir that the Subordinate Judge
(M. Taj-ud-din) who fixed the issues considered that the plain-
tiffs had to prove something more than the mere mechanical
execution of the deed by Sakina Begam in order to succeed
as against her. Pandit Janki Nath one of the pleaders for the
plaintiffs in answer to a question put by us vigorously denied
that any such contention as is now put forward by Sakina
Begam was ever suggested in the Court below but the Judge's
notes of the arguments show that Sakina Begam's pleader
began his argument by citing a string of cases all of w^ich
deal with the amount and nature of the evidence which must
be given before a pardanashin woman like Sakina Begam
can be held bound by a deed signed by her. Notwithstanding
the argument addressed to him the Subordinate Judge, who-
was the successor of the officer who fixed the issues, does not
allude to the question at all in his judgment. He passed a
decree against Sakina Begam upon finding that the deed had
been signed by or rather sealed for her.

There can be no doubt that the contention now advanced
•was put forward in the Qourt below but in her written state-
ment Sakina Begam certainly did not pointedly suggest
anything of the kind. She confined herself to a denial of exe-
cution and in her appeal to this Court the only ground of
appeal which touches this question runs thus " that it has
not been proved that the appellant No. I (Sakina Begam)
executed the mortgage-deed in suit and received the consider-
ation.'* The question is whether a bare denial of " execution "
by a pardanashin woman against whom a deed is sought to
be enforced is sufficient to cast upon the plaintiff the duty of
proving that the woman not only set her hand to the deed but
understood what she was doing. In this Court the point ha»
been argued several times but has never been definitely



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295



decided and so fnr as I am Jivvare it has not been definitely
decided by any other Court. Bat there are two cases which
seem to show that in the opinion of their Lordships of the Privy
Council the rule as to the proof required is the same whether
the pardanashin defendant admits the execution and denies
that she understood the deed or confines herself to a denial
that the deed was executed by her.

In Sudisht Lai v. Mussamat Sheobarat Koer (1) it was
sought to make a pardanashin woman ^ liable upon a statement
of account signed by her husband in whose favour she had
executed a power of attorney. From a passage in the judg-
ment of the High Court at the foot of p. 246 of the report it
appears that the execution of the power of attorney was denied.
From the report it seems scarcely possible that the defendant
pleaded that she did not understand the document. Their
Lordships of the Privy Council referring to the power of
attorney say, " This mukhtamama is said to have been execut-
*^ ed by the defendant. Their Lordships desire to observe that
*'*' there is no satisfactory evidence that this mukhtamama was
^* explained to the defendant in such a way as to enable her to
" comprehend the extent of the power she was confering
" upon her husband. In the case of deeds and powers executed
" by pardanashin ladies, it is requisite that those who rely
*' npon them should satisfy the Court that they have been
" explained to, and understood by, those who eiiecute them.
•' There is a want of satisfactory evidence of that kind in the
" present case."

In Shambati Koeri v. Jago Bibi (2) the defence of the
pardanashin woman was exactly the same as the defence in
this case. She denied all knowledge of the deed. The issue
fixed was " Whether the defendant Jago Bibi executed the
" disputed mortgage-bond dated 3rd July 1883 tor proper
" consideration to the plaintiff, and is she bound by the act of
" her agent and son-in-law Soondar Lai ? " Their Lord-
ships of the Privy Council said that they saw no reason to



Musammvt
Sakina

Begam and
others
t?.

Lala Inder
Pershad

and others.



0)



, L. R.. 7 Cttlc, 2i5.



(2) I. L. R.: 29 Calc, 749.



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296



THE OUPII f:ASES.



[Vol. VII.



Mnsammat

Sakina

Begam anti

others

r.

Lala Inder

Perahad
and others.



differ from the general conclnsion arrived at by the High
Court that '' thoagh the mortgage-bond is stated to have been
read out to the lady, there is no evidence that it was in any
way explained to her, and that she really understood the
conditions and effect thereof." Later in their judgment their
Lordships qnote the passage from the judgment in the case of
SudisM Lai v. Sheobart Koer which I have set out above and
say, " From the preceding observations it is clear that there
is a want of satisfactory evidence of that kind in the present
case." - .

Both these cases seem to support the view that if a parda^'
nashin woman is sued upon a bond the ei:ecution of which she
denied it is not sufficient for the plaintiff to prove only that
she set her hand to the document. It was urged by the learned
advocate for the plaintiffs that to hold that a plaintiff must in
every such case prove that the pardanashin understood the deed
upon which she is sued is equivalent to allowing her to put
forward inconsistent pleas namely tiiat she did not sign the
deed and that if she did she did not understand it. The practical
result may be this, but to hold otherwise would be to confine the
rule to Uiose cases only in which the pardanashin admits
having signed the deed and pleads want of independent advice
or the like, although it may well be that a pardanashin woman
who has been induced to sign a deed may not know that ahe has
signed the deed in suit.

In the case of Ashgar Alt v. jDelroos Banoo Begutn (1) their
Lordships of the Privy Council said, " When a person of compe-
" tent capacity signs a deed}it is to be presumed that he nnder-
^^stood the instrument to which he has affixed his name; but in the
^^caseof a j7ariana«Atn woman who had no legal assistance the
" ordinary presumption does not arise; and it is incumbent upon
'^ the Court to be satisfied, as a matter of fact, that she really
^' did understand the instrument." These remarks were made in a
case in which the pardanashin admitted having signed the deed
and pleaded that she had not understood its effect but it seems

(1) 1. L. R., 3 Cal., 324.



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297



to me that the reason for the mle applies as much to a case
where the woman denies her signature End it is proved against
her as a case where the woman admits her signature and denies
that the deed is binding upon her. I am speaking o£ course of.
cases in which the pardanashin is a defendant. When she comes
in as plaintitf and challenges a deed signed by her other consi*
derations arise (see Select Case No. 272).

The mle as -to pleading in cases in which a pardanashin is
sued upon seems to be this. If she admits having executed the
deed she must plead definitely that it is not binding upon her so
as to give the plaintiff notice of the position which she intends
to take up. If she denies having executed the deed the plain-
tiff must prove not only the factum of mechanical execution
by her but also that she signed it with knowledge of its bearing
upon her interests.

The learned advocate for the plainti& contended that in
the view which I have taken great difficulties will be thrdwn
in the way of creditors seeking to recover money shown to have
reached the hands of pardanashin women. I see no ground for
this fear. What a plaintiff seeking to enforce a deed against a
pardcmashin woman has to prove is that its terms are fair and
equitable and this is usually done by showing that the transac-
tion was explained to her by some independent person or other-
wise that she understood the deed and its effect upon her
interests. The amount of proof required varies with the nature of
the transaction. For instance in a suit upon a simple money-
bond or promissory note reserving a reasonable rate of interest
when there are no circumstances to excite the suspicion of the
Court it would probably be sufficient to show that the money
alleged to have been lent actually reached the hands of the
executant. The rule is not intended to enable pardanashin
women to escape payment of their just debts. If the stipula-
tions for interest are uncommon or the bond was given as
security for another person and not for cash more proof would
be required if the transaction were challenged. In fact the

amount of proof required varies with the nature of the transac*

tion«



Mosammat
Sakina

Begam and

others

r.

Lala Inder
Pershad

and othen.



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m THE OUDH CA8E^, [Vol.VII.

In my opinion the plaintiffs} in tlie present case were
3ound to prove that Sakina Begam received the consideration
stated in the deed and executed the deed with knowledge of its
jfFect upon her interests.
» ♦ ♦ * * #

[The Court then discussed the evidence in the case. As to
he payment of the consideration there was evidence that the
noney was paid by the plaintiffs at the door of the zenana to
he defendant's husband for her and he took it inside, but there
y\as no evidence that the money actually reached the hands
)f the defendant. There was evidence to shew that at the time
)f the registration there was a woman sitting behind the parda.
Some witness stated that she was the defendant, having either
recognised her from her voice or because they were told so by
zenana servants. None saw her actually with his own eyes
there. There was respectable evidence produced by the defend-
mt'that she was not at her house at that time. The evidence
further shewed that the deed was read out to the woman behind
the parda by a clerk and she said 'yes, I agree,' that a seal
Uleged to be the defendant's was brought out from behind the
varda and was affixed to the deed. It was also shown that the
defendant's husband was at the tinie in financial difficulties.
Upon this evidence the Court held that it was not proved that the
defendant either received any part of the consideration for the
mortgage-deed in suit or that she caused her seal to be affixed to
the deed, or that she understood the transaction or had any
means of doing so. — Editor]*



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Vol. VIL] THE OODH CJiSES. 299

FIRST CIVIL APPEAL, No. tlZOF 1903.*



Before Mr. Clumier and Mr. Rustomjee.



Sarju Pbbshad (Defendant} v, Shbo Gharan Lal and 1904.
others (Plaintifi). Aug. 29.

Review of judgfnent — Application for veme^ Jtled before
filing of appeal^ jurisdiction of Court regarding^^Procedure as
regards application for remevo — Code of Civil Procedure ** 629.



Seotion '623 of the Code of Civil Procedure means that a person consider-
ing himself aggrieved by a decree ot order cannot apply U» a review of judg-
ment if either he himself has appeciled or any other person, baa appealed on a
ground common to the appellant and himself or any othe^ ^enion has filed an
appeal to whioh he has been made a respondent and in which he can under
8. 661 of the Code or otherwise present to the appellate Court the case on
which he wishes to apply for review.

The respondents sued for possession of property detailed in a list attached
to their plaint which conflistod of two parta . The Subordinate Judge over-
looked the second part ol the list apd pMK«d a c^eoreiB te pofaesslon of the
property in the irst part only. The title to all the pi^j^rty In the list was the
same. On June 15th 1900, the respondents applied for a review of judgment.
On July 3rd i^e appellant filed an appeal in the Court of the Judicial
Commissioner. On April 25th 1902 the app^lanfs appeal was dismissed,
and on April dOth 1903 bis appUoation. for lisave toapfts^^ tp^ ^i• Majest^j's
Coniidl was di^i^^issed. The SnboidiiMkte Judge then tpojc up the application
foe review and modified the decree so as to make it include the property in the
second part of the respondent's list.

HM, that the order of the Subordinate Judge was made with jurisdiction
and waa right. As a matter of practice however if after an application for
review has been filed an appeal is filed on a ground common to the appellant
and the applicant or an appeal is filed in which the app^cant can file objeotiona
under s. 5fSl> Civil Procedure Code, the Court to which the application is made
sbonld decline to proceed with the application until the appeal has been heard
and when the applicant has been made a respondent and can obtain the relief
whiob he requires by laeans of obJQCtionf under s. 561 should require him to
fileanch objections.

Against the decree of B. Jwala Perehad, Subordinate Judge, Bara Banki,
dated 30th June 1903.



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THE OUDH CASES.



[Vol, VII.



6arju Pershad

V.

8heo Charan
Lai and
others.



For Appellant. — B. Girja Saran Lai.

For Rbspondents, — Hon'ble Rai Sri Ram Bahadur and B#
Ramapat Ram.
Chamier, a. J. C. — In this case the respondents sued for
possession of property detailed in a list attached to their plaint
which consisted of two parts. When giving jadgment the
Subordinate Judge overlooked the second part of the list and
gave judgment and passed a decree for possession of the pro-
perty in the first part only. It is common ground that the title
to all the property in the list is the same. On June 15th 1900
the respondents applied for a review of judgment. On July
3rd the appellant filed an appeal in this Court and the records
were sent for with the result that the Subordinate Judge wbs
unable to dispose of the application for review the hearing of
which was adjourned from time to time upon office reports that
the appeal had not been disposed of. On April 25th 1902 the
appellant's appeal was dismissed by this Court. An application
for leave to appeal to His Majesty in Council was dismissed on
April 30tb 1903. The Subordinate Judge then took up the
application for review and modified the decree so as to make it
include the property in the second part of the respondents^
list.

For the appellant it is contended that the Subordinate
Judge acted without jurisdiction because the respondents might
within the meaning of the last paragraph of section 623 oE the
Code of Civil Procedure have presented to this Court under sec-
tion 561 the case on which he applied for the review. For
the respondents Babu Sri Ram relies upon the decision in
Thacoor Prasad v. Baluck Ram (1) and contends itliat the last
paragraph of section 623 does- not apply to this case.

In the case cited an application by a defendant for leave
t6 appeal to Her late Majesty in Council was pending when an
application by him for review of the judgment of the High
Court came on for hearing. The^High Court held that it could
hear the application because at the time when the application
for review was presented no application had been made for

(1) UC.L,R^ftl.



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301



leave to appeal. The Court relied upon a decision in 11 Bengal ^^'^^^ PersiraJ
Law Reports (F.B.), 428, but that was pronounced in a case under Sheo Chumu
the Code of 1859 under which great confusion prevailed owing others.
to the absence of such a provision as that contained in the last
paragraph of section 623 of the present Code. The paragraph
id curiously worded. It provides that a party who is not appeal-
ing from a decr^ may apply for a review of judgment notwith-
standing the pendency of an appeal by some other party except
when the ground of such appeal is common to the applicant
and the appellant (evidently a reference to section 544) or when
being a respondent he can present to the appellate Court the
case on which he applies for the review. This must be read
with part of tiie opening paragraph of the section namely the
words " any person considering himself aggrieved by a decree

** from which no appeal has been preferred."

Reading the two parts of the section together, I think that
the words " who is not appealing " must be taken to mean
" who has not appealed " that the words " may apply " mean
^ may present an application " and that the words " being a
respondent'* mean "being a respondent at the date of the appli-