LexMST. KHARBUJA KUER versus JANGBAHADUR RAI
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19~1 The Nigh CtnJrt, Calculla •• Amal Kumar Roy Sinha C.J. 456 SUPREME COURT REPORTS [1963) defendants-appellants allowed the case to be deci- ded 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 main- tenance 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 inter- fering 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 conten- 1962 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 Rame- sh 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 attor- ney, that subsequently they came to know that it was a maintenance deed containing false recitals to the effec
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