Authored By : Ernest Edward Fletcher, Thomas WilliamRichardson

Ernest Edward Fletcher, J.

1. This is an appeal from a decision of the learnedSubordinate Judge of Hooghly reversing the decision of the Munsif of Serampur.The plaintiff who is the appellant before us brought a suit to recover acertain sum of money on a mortgage security. The sum advanced was Rs. 500. Boththe plaintiff and the defendant were pardanashin women. The Court of firstinstance decreed the suit. On appeal, the learned Subordinate Judge has setaside the decree of the Munsif. Hence this appeal to this Court.

2. There is only one question in this case and that iswhether, on the findings of fact, the defendant is bound by the mortgagesecurity. It has been found by the learned Judge, and that finding is notquarrelled with, that the lady borrowed Rs. 500 and received the money for herown purposes. That, of course, is a material finding. It has also been found bythe learned Judge that the lady instructed her own men to draw up themortgage-deed. It has also been found that her mukhtear and husband, actingunder a document the proper name of which is, I suppose, am-mukhtear-namah,presented the document at the Registration Office and had it duly registered,the am-mukhtear-namah authorising the husband to appear at the RegistrationOffice on behalf of the wife, the defendant. Of course, it is evident on adocument like that that the person must have appeared before the Registrar forthe purposes of the Registration Act. It has been suggested that the husbandmight have been authorised to appear for some purpose unauthorised by theRegistration Act. I do not think that that is so. The appearance must obviouslyhave been for the purpose of registering the document and acknowledging thesignature on the document. That is the way in which a document can beregistered when the executant is a pardanashin woman. But stress has beenplaced in this case on a judgment of the Privy Council [Kali Bakhsh. Singh v.Ram Gopal Singh 21 Ind. Cas. 985 : 16 O.C. 378; ( 9(sic) 4) M.W.N.N. 112 : 12A.L.J. 115 : 15 M.L.T. 130 : 19 C.L.J. 172 : 1 O.L.J. 67 : 26 M.L.J. 121 : 16Bom. L.R. 147 : 36 A. 81 : 18 C.W.N. 282 (P.C.)]. The view expressed there isthat a pardanashin lady has got to have the document explained to her. As Igather from that judgment, there is nothing in it which suggests that when apardanashin lady has given instructions to her own men to draw up the deed in aparticular way and when that document has been drawn up in that particularmanner, anything further is required. It is not required that the documentshould be explained after it has been drafted, provided that the draft, infact, corresponds with what the lady understands before it was made. It issuggested that the lady was an ignorant woman. I am not sure that her ignorancewas so great as has been suggested by the learned Vakil for the respondent. Shesaid that she never executed a document and she also kept back the evidencethat would prove positively that she knew well about the contents of thedocument. It seems to me that, although the lady was not a literate one, shewas gifted with a certain amount of intelligence. Be that as it may, the evidenceoffered in this case, namely, that the lady gave instructions for thepreparation of the document and that she did, in fact, receive the advance ofRs. 500 and the subsequent registration of the document, do amply warrant theCourt to come to the conclusion that the lady fully understood the documentthat she executed. In cases where the document comes from the side of thelender, it must, no doubt, be read over and explained to the executant if theexecutant be an illiterate one, but in, this case, when the document came fromthe side of the defendant, the mortgagor, it was amply sufficient to warrantthe conclusion that the lady fully understood the document. The learnedgentleman who has conducted this case on behalf of the respondent says that thisis a second appeal and that we are not entitled to interfere with the findingsof fact. That is quite true. But there is no reason why the Appellate Courtshould not make deductions from facts without disturbing the findings arrivedat by the lower Court. I have no doubt that the Court ought to find that thislady fully understood the document. The result, therefore, is that we set asidethe judgment and decree of the lower Appellate Court and restore the judgmentand decree of the Court of first instance. The defendant must pay to theplaintiff her costs both in this Court and also in the Courts below.

Thomas William Richardson, J.

3. I agree that the judgment and decree of the lowerAppellate Court should be set aside and the judgment and decree of the firstCourt should be restored.

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Bhuban Mohini Dasivs. Gajalakshmi Debi and Ors.(10.05.1915 - CALHC)