Pathumma vs Vasudevan Vadhyan Namboori

The Appellant is same in both the appeals. She was the last Defendant in O.S. 478 of 1118 and the Plaintiff in O.S. 307 of 1119 of the Vadakkancherry Munsiff''s Court. O.S. 478 of 1118 was by the manager of a Malabar Brahmin Mana for the recovery of arrears of Michavarom and other dues in respect of the plaint A,B and C schedule properties outstanding wit1 Defendant 1 by name Pathumma under three Kanom Kychits, Ex. B dated 29-8-1108 for the. A schedule properties, Ex. D dated 32-12-1109 for the B schedule properties and Ex. A dated 3-6-1116 for the C schedule properties. Defendant, 1''s contentions in respect of the claims for and B schedule properties were, confined to the ''Paravassi'' price for paddy and millet and interest claimed in respect thereof and also to the mode of appropriation of Rs. 846-1-0 sent by her by money order. She had also pleaded full discharge of her liabilities by that remittance.

Her contentions as regards the C schedule properties were the subject of the controversy in O.S. 478 of 1118, and the connected case O.S. 307 of 1119. She stated that she was holding the C schedule properties under the terms of a Kychit Ex. F of 1074 and not under Ex. A of 1116. According to her, she was an ignorant and unlettered pardanashin woman and she came to execute Ex. A without understanding its contents or implications as a result of fraud, collusion undue influence and misrepresentation at a time when her sole adviser her husband was under, going the sentence passed against him in a criminal case. This Ex. A contained unconscionably terms different from the prior Kychit Ex. P. She would not have accepted Ex. A had she known the real import of the same. It was, therefore not binding on her or the C schedule properties.

She was, however, prepared and ready to pay the dues according to the terms of Ex. F. While Ex. F had not made any provision for. ''Kuttikanom'' on account of trees of wild growth in the C schedule properties and the payment of ''Aradiyanthiram'', these directions were made in Ex. A for the payment of the same. The capacity of the Jenmi''s Para was mentioned in Ex. A to be 11 Edangalies according to the standard'' measure. She questioned this as well. Minor contentions relating to the rate of paddy and; millet were also raised in the case.

The connected suit O.S. 307 of 1119 was filed by this Pathumma for a declaration that the Kanom Kychit Ex. A of O.S. 478 of 1118 which was the same as Ex. 1 in O.S. 307 of 1119 not binding on her or the properties scheduled in the plaint. The properties here were the O schedule properties in O.S. 478 of 1118. grounds of attack of this Kanom Kychit of 1119 were alleged in this plaint to obtain the relief that the said document was not binding on hat or the properties.

O.S. 478 of 1118 was tried and decided first. The trial Court found that the terms in Ex. A relating to the C schedule properties were not binding on Defendant 1 and the plaint C schedule properties, that Defendant 1 Path-was not a willing and intelligent party to execution of the same, that she would not had been a party to it had she known that the terms and conditions of Ex. A were not similar to those of the document which she was supposed to renewing, that she was a Pardanashin lady who had no independent advice in the execution Ex. A document, and that the Plaintiff was not entitled to claim any relief on the basis of A. The Plaintiff''s-claim for ''Paravasi'' was allowed, Paddy and millet were allowed to valued at Rs. 1-4-0 per para. The sum of 846-1-0 sent by Defendant 1 to the Plaintiff allowed to be appropriated towards: the am; decreed to him. The decree was passed tently with these findings and the parties w directed to suffer their costs.

A.S. 140 of 1121 had been filed against this decree by the Plaintiff in the District Court, Trichur. While that appeal was pending O.S. 307 of 1119 was taken up by the Munsiffs Court and decreed basing its conclusion on the judgment in O.S. 478 of 1118. The appeal against that decree in the District Court was A.S. 147 of 1122. Both these appeals were heard together by the consent of the parties. The evidence adduced in both the cases was also agreed to be used for the purpose of the two appeals. The main contention related to the validity of Ex. A the Kanom Kychit of 1116. The lower appellate Court found that though the Defendant Pathumma may be taken to be a Pardanashin lady, she must be deemed to have accepted that document as valid and binding on her. Both the appeals were, therefore, allowed resulting in the dismissal of Pathumma''s suit O.S. 307 of 1119. Pathumma was directed to pay the cost of the opponent in both the Courts. Pathumma has, therefore, come up in appeal. Both the appeals were, therefore, heard together by us.

The Courts below have now found that Pathumma is a Pardanashin lady. At the time when she had executed the Kanom Kychit of 1116, i.e., Ex. A in O.S. 478 of 1118, her husband was in jail and that her brothers were looking after her affairs. The husband was in jail from Kumbhom 1115 till Meenom 1117. Though Pathumma had a case that her brothers were not well disposed of towards her, she had as D.W. 1 in O.S. 478 of 1118 admitted that after the criminal case against her husband was started her brothers were looking after her affaire; that they were conducting the criminal case against her husband though that ended in a conviction, and that till the husband was set free, the brothers were on cordial terms with her. Her husband Mohammad had also a Kariyastha who was working for him for nearly 25 years. He had been examined in O.S. No. 478 of 1118 as D.W. 4 and as P.W. 3 in O.S. No. 307 of 1119. Though the husband was in jail, she had dependable persons from whom she could take advice. She was not, therefore, in a completely helpless situation as was sought to be made out in both the cases.

The transactions with Pardanashin women are scrutinised by the Courts to see whether there is good faith in the transactions between such women and the third parties. Though there is no codified law, yet the decided cases have considered the question and laid down certain wise rules for guidance. Those rules are laid down, as held in-34 MAD LR 690 (A) for the protection of Pardanashin ladies. They are rules of guidance rather than of law and that their application must depend on the facts of each case. Such rules were considered and commented upon by Sirkar in his ''Commentary on the Evidence Act'' u/s 111 where there was a question as to the good faith of a transaction between parties, one of whom stood to the other ''in a position of active confidence. The learned author had considered all the decided cases on the subject in the Indian Dominion and summarised the law as follows at pp. 862 and 863 Edn. 8 of his book:

The result of these decisions appears to be that in the case of deeds and powers executed by ''Pardanashin'' women, (Hindu or Mohamedan), it is requisite that those who rely upon them should satisfy the Court that they had been explained to and fully understood by those who executed them. The Court should be careful to see that deeds taken from ''Pardanashin'' women have been fairly taken and that the party executing them has been a free agent and has been duly informed of what she was about to do. The Court when dealing with a deed alleged to have been executed by a ''Pardanashin'' woman, must before it gives effect to it, satisfy itself upon the evidence-

(1) that she is really a ''Pardanashin'' woman who lives in complete seclusion and has little or no commerce with the outside world;

(2) that the deed was actually executed by her or by some person duly authorised by her with a full understanding of what she was about to do;

(3) that she had full knowledge of and understood the nature and effect of all the transactions into which she is said to have entered; a mere reading or translation is not sufficient. The deposition must be substantially understood and nothing must be concealed and it must be found that she had sufficient intelligence to understand the important and-relevant matters, though there may not be a clear understanding of each detail of a matter which may be greatly involved in legal technicalities.

(4) that she had independent and disinterested advice in the matter; but independent advice is not in itself essential. After all the advice, if given might have been bad advice, or she might have disregarded it. Independent advice is not the only way in which the presumption of undue influence can be rebutted;

(5) that she understood the whole document. If it is found that she was not aware of or did not understand a part of the transaction, the document must fail as a whole.

The principles thus summarised fall broadly into two groups, viz., (i) cases where the person who seeks to hold the lady to the terms of her deed is one who stood towards her in a fiduciary character or in some relation of personal confidence, and (ii) cases where the person was an absolute stranger and dealt with her at arm''s length. In the former class of cases the Court will act with great caution and will presume confidence put and influence exerted; in the latter class of cases the Court will require the confidence and influence to be proved intrinsically. In all these the fairness of the bargain is the crucial test. Bearing these principles in mind, it is necessary to examine the transaction Ex. A (in O.S. No. 478 of 1118) in question.

Exhibit A is the renewal of Ex. J dated 27-10-1096. The additional conditions that are included in Ex. A are that the tenant must pay KuttikKanom to the extent of one fourth of the value of wild trees when cut and removed and that certain perquisites are to be given at the time of Aradiyanthiram in the Jenmi''s Mana. Towards the close of the document there was also a statement that the capacity of the Para by which Michavarom had to be measured was 11 Edangalies according to the standard measure.

After the Tenancy Act, 15 of 1113, it became necessary to show in the renewal Kanom deeds all the amount which the tenant had to pay to the Jenmi and so in the renewal deeds executed thereafter the customary dues which were being paid without any specific mention in the document but which were paid in accordance with the prevailing custom used to be mentioned specifically in the renewals. (After going through the evidence relating to various transactions as evidenced by a number of deeds their Lordships concluded). These circumstances relating to pathumma''s conduct before and after the execution of the Kanom Kychit Ex. A of O.S. No. 478 (r)f 1118: coupled with the silence relating to Exs. K and XVIII of O.S. No. 478 of 1118 taken and executed by Pathumma on the same date on which Ex. A was executed by her, would show that she executed Ex. A after knowing fully well the contents of the document and the implications contained therein.

Pathumma''s husband and the Plaintiff in O.S. No. 478 of 1118 were moving in cordial terms and after his return from jail he had borrowed some money from the Mana on a promissory note. The payments under Ex. T of O.S. No. 478 of 1118 and Exs. XVII and XXII of O.S. No. 307 of 1119 of the Michavaram and Sirkar tax as mentioned in Ex. A were after the husband was released from jail. There was, therefore, no dispute as to-the liability under the document.

The money borrowed under the promissory note from the Mana was not returned and so a suit was taken and attachment before judgment of the husband''s property was obtained by the Mana. It was only after this that they fell out and then he had filed the case taking advantage of the position of his wife as a Pardanashin lady. We do not think that there are any circumstances to invalidate Ex. A of O.S. No. 478 of 1118 which is the same as Ex. I in O.S. 307 of 1119. We agree with the learned Judge in holding that Ex. A is a valid document and is not liable to be set aside.

An argument was advanced about the Paravassi mentioned in Ex. A. In Ex. J the Michavaram provided was 15 paras 5 Edangalies. It was reduced to 14 paras and 64 Edangalies in Ex. A. Taking the capacity of a Para to be 11 standard Edangalies, this Michavaram of 14 Paras and 6 1/2 Edangalies would come to 16 Paras 1 Edangali and 3 Meesams according to the standard measure. It was this quantity that was measured out to the Mana in 1117 for which the receipt the counterfoil of which is Ex. T of O.S. No. 478 of 1118 was issued. The Sirkar tax also was shown at a low figure in Ex. A and Exs. XVTI and XXII in O.S. No. 307 of 1119 dealt with already would show that it was this identical amount that Pathumma paid towards the same. This capacity of the Para is mentioned in all the documents executed by the Jenmi after 1113 and we do not think that there is any substance in this contention as well. We, therefore, confirm the decree of the lower Court and dismiss both the appeals with costs.