Ramkunwarbai vs Ramchandra

H.R. Krishnan, J.—This is an appeal by the Plaintiff; she had sold a house to the Defendant, by a sale-deed, which she, sought to cancel on the ground of fraud; the lower Courts have, by concurrent judgments, held that it was a valid sale, and there was no fraud, and that the Defendant purchased had acquired good title Usually, the Appellant in second appeal, does not challenge such concurrent judgments, based on findings of facts; here however, it was urged that the facts should be re-investigated as the approach of the lower Courts had been vitiated by their placing the burden of proving fraud on the Plaintiff, though, there were special circumstances, shifting the burden on to the Defendant.

The questions raised are, firstly, whether the Plaintiff vendor is a Pardanashin woman, or a person in similar situation, entitled to the special cloak protection from the Courts, shifting on to the person dealing with her, the burden of good faith and absence of fraud, when she alleged that she was influenced and cheated. Secondly, whether the findings of fact have been vitiated by such burden being placed on her, and thirdly whether on assumption that the purchaser had to prove good faith, he had succeeded on the materials produced by him. Finally, though it was taken in the Court, whether the sale is voidable, because the deed was "presented" to the sub-registrar, by a lawyer without a special power for it, in violation of the provisions of Section 32 of the Indian Registration Act.

Though the litigation has been going oil for quite a number of years, the facts, except in regard to the alleged fraud, are practically common ground. The Plaintiff, who had lost her husband some years before 1946, lived at Ujjain and owned a house about the identity of which there is no controversy. She seems to own other properties also, and according one of the witness and herself, she has been doing all the time considerable business in money lending on pledge of gold ornaments. All the time she has been looking after herself without any assistance. Some time in 1946, she got interested in a religious institution called Ramanujkot at Ujjain, of which the presiding sadhu is one Garudadhwajacharya, and executed a deed in his favour. It was called (Hiba-nama or Gift Deed); giving the house to him, with the express limitation that as long as she was alive, he would get no interest, and the would be enjoying it, by occupying it and collecting for herself the rent from a tenanted portion under(sic) this from 1947 onwards she took money on three occasions (a total of Rs. 3,000) from the Defendant Ramcharan, who is a vaidya practising at Ujjain; he had treated her for some ailment at some time, but it not anybody's case that he was treating her when these transactions were entered into. The last of the three installments, completing the payment of Rs. 3,000 was in January, 1950. In the same month she executed the present sale-deed in his favour. It refers to the earlier transactions by which she has in effect willed the house in favour of the Acharya; now she was revoking it, and selling the property to the Defendant for Rs. 3,000, which he had paid and for which he had obtained receipts. The deed itself had been drafted by a lawyer; he took it to the sub-registrar, and on the deposit of the usual fee, the latter came to his residence where the deed was read over to the Plaintiff, who admitted it was correct, and she had executed it. On this, it was signed, marked and registered. The Defendant purchaser having already paid the consideration of a total of Rs. 3,000 in three installments in course of three years, the deed was made over to him at the Plaintiff's instance Whether or not. the Plaintiff delivered possession of the house to the purchaser and became his tenant, by another agreement, or whether she changed her mind even before giving possession, is in controversy in another suit the second appeal from which is being disposed of today, by another judgment. In it, this purchaser sued for ejectment and arrears of rent, on the allegation that, the purchaser because his tenant on a monthly rent of Rs. 15, but defaulted after paying for one month in February, 1950.

In July of the same year the vendor filed this suit for cancellation, alleging that she had been cheated by one Ramprapanna, a Chela at the Mutt, and there had been no payment of money, and no sale, and no transfer of title.

As already noted, the Plaintiff had executed an instrument in favour of the Acharya gifting (in name at least) to the religious institution, this house not with immediate effect, but with effect after the death; she alleged in this plaint that Ramprapanna, who used to be the manager on behalf of Acharya, and had been removed from that office at about this time, and was anxious to spite him. He was still at the Mutt and was therefore in a position to play up on the credulity of the Plaintiff. He went and told her a false story which, however, being a simple woman she believed. Some trustees, he said, were to be appointed from Bombay for the management of the Math, and they were going to remove her from the house and take it away from her. This could be prevented by some steps that he was willing to take. At the first instance, he wanted to issue three notices on her behalf, for which he wanted three blank papers, with her finger prints; she gave him such finger prints. Again she was to execute this sale-deed in favour of the Defendant and get it registered sot ha(sic) the Muth could not claim the title. She did not consult the Acharya and did not mention all this before the sub registrar. She went to the lawyer, and to the sub-registrar, and did as Ramprapanna told him. Soon after she found that the Defendant was seeking mutation with the municipality; so she brought the suit.

The Defendant's case was a straight one. There was an agreement to sell in 1947; he told her that he could pay in course of three years only, and accordingly paid, Rs. 900 on one occasion, Rs. 1,100 on the second, and Rs. 1,000 on the third and obtained the formal receipts with witnesses, who are three different persons unconnected with him; after it he got the sale deed executed. Even then, he took all caution and prudence; he requested the vendor to get the deed drafted by a lawyer, who ascertained from her what she wanted, and then reduced it to writing. Registration in the Sub-Registrar's office is necessarily a hasty, and very formal affair; but if he could come to the house of a lawyer of one of the parties, the document could be read out and registered in a quiet atmosphere. Accordingly, the Vendee arranged for this also. The Sub-Registrar came, read over to her the contents of the sale-deed, and she admitted the recitals. He accordingly registered the deed. The arrangement under which the vendee allowed her to occupy the house, is a very common one in these parts. After paying rent for one month, she changed her mind; but about that arrangement we are not directly concerned in this suit. The Defendant urges that the Ramprapanna story is quite false. The Plaintiff is not a Pardanashin, or otherwise helpless, but is of a special business mentality and is actually a money lender.

In the hearing, the Plaintiff examined herself as the main witness, and in effect the only witness on the fraud practised by Ramprapanna and in addition neighbours and the Acharya; while the Defendant called the lawyer; the Sub-Registrar's clerk and the, witnesses to the receipts. The Courts accepted Ramprapanna's evidence that he had altogether nothing to do with the affair; they held that there was no fraud, and it was a valid sale for consideration; and accordingly dismissed the suit.

Ground No. 1:-The findings are of ones of fact which are conclusive as far as second appellate Court is concerned. But it was urged On behalf of the Plaintiff that the lower Courts have approached the problem from an altogether wrong angle, in ignorance, of the principle that those dealing with Pardanashin woman and others similarly placed, should show good faith and absence of influence; and that, in such case, the burden should not be placed on the Plaintiff, who is entitled to special protection. The Defendant-Respondent's answer is that this lady is by no means a Pardanashin or one with similar disability; further the decision has not hinged on the burden of proof, but is based on a full assessment of evidence adduced by both sides. It was further urged in the reply that even with the burden of proof on the purchaser he has shown good faith and caution in this transaction, and has shown the Plaintiff's story to be false.

Quite a mumber of rulings regarding transactions with Pardanshin women have been cited on behalf of the Appellant. But before seeking to apply them, we have to answer the question if this lady is a Pardanashin, (which admittedly she is not) or one, actuary in such a state of helplessness as to deserve to be equated to a Pardanashin for the purpose of the "special cloak of protection". This subject has been studied at a considerable length by our Courts, u/s 16 of the Contract Act and Section 111 of the Evidence Act. Even before the enactment of these statutes, a theory had been developed in the Courts that woman living in Parda was, by that very fact, ones exposed to influence, and cheating, and were therefore entitled to the enquitable protection granted by the English Court of Chancery "to week, and ignorant and infirm persons". In course of time, however, this generalisation was questioned, because it was common experience to find in India that Pardanashin ladies are highly intelligent, strong minded, and possessed skill and business capacity. It is, however, unnecessary for our purposes to go into the aspect of this question because the Plaintiff is not a Pardanashin. The main insignia of Pardanashini are seclusion more or less complete, and an almost invariable habit of entering into business dealings through the intermediaries, or male relations or agents before whom she does not observe Parda. In this case, the Plaintiff is a lady who admittedly does not sit in Parda, and moves about freely; nor is she in the habit of entering into business transactions through the intermediary of a relation or agent; but on the contray, does all the business herself. In fact, she is on better in this regard, and, according to her own evidence, or admission does, business on some scale, in money-lending on pledge of gold ornaments. Here again she deals herself dealing with the borrowers. So what has been said in regard to Pardanashin woman has no application to her.

Another category of presumed helpless and influencible women, was indicated in the case reported in Hodges v. Delhi and London Bank, Limited ( 27 IA 168). A woman may not be a Pardanashin in a proper sense, but may be "a quasi-pardahashin" so close to the formal Pardanashin in kinship and habits, and so secluded from ordinary social intercourse, that a. like amount of incapacity for business may be ascribed to tier. Actually, this line (of thinking) did not impress the Privy Council but even assuming the possibility of such a class, the Plaintiff cannot be brought into it either, because she has been looking after her personal affairs and money lending without any external assistance.

It is theoretically conceivable that a woman is not a Pardanashin in any case, but on account or general ignorance and illiteracy,

is exposed to danger and unfair dealing. This has been examined by the Calcutta High Court in the case reported in Sonia Parshini Vs. Sheikh Moula Baksha, . The person concerned there was an illiterate and ignorant mill hand and it was held:

It would be perversion of the rule (Section 16, Contract Act) to deny in such case the protection, despite the helplessness of her state merely on, the ground that she is not strictly Pardanashin.

That principal again has no application here because this lady is not a mill hand but a money lender,

Even apart from all these considerations it is also theoretically conceivable, that the person is at that time under improper in fluence, and if so, the party dealing with him or her has to show good faith. That again is not the position taken in the plaint nor is there any influence. Ramprapanna is supposed to have played a trick, but even according to the Plaintiff, he was not her spiritual preceptor or one capable or actually influencing her by appealing to religious sentiments. Actually Ramprapanna is supposed by her to have worked against the Acharya. Again, the present sale, is not to Ramprapanna, but to somebody else; who for his part, is supposed to have been a passive recipient of the property- No doubt he had once treated this lady as a vaidya; but it is neither pleaded non shown in the evidence; that when the sale was concluded, he was treating her for any serious ailment. Above all, a professional lawyer was asked to assist. I, therefore conclude that the elaborate theory under which it is argued that the burden of proving good faith should have been placed on the purchaser, does not stand scrutiny.

Ground No. 2:-Actually, the lower Courts have not decided the case on burden of proof. Both parties have led evidence and that has been assessed in the usual manner. The placing of burden of proof is of significance only where one of the parties has not adduced any evidence or its evidence is discarded, and the Court accepts the case of the other, on that ground alone.

Ground No. 3:-Even on the assumption that the purchaser had to shoulder the burden of proof, the results are the same as have been found by the lower Courts. On the one hand, we have the story set up by this Plaintiff and denied by Ramprapanna. The later has had altogether nothing whatsoever to do with the receipts or the registered deed. The Acharya has deposed about other matters, but he is closely interested, as, in the event of this sale being set aside, he can hope to get the property. On the other hand the Defendant has shown that he has been acting with caution and prudence, and proceeding with full formalities. Whenever he paid money, he took a receipt. He in fact, called a witness, on every occasion of payment, of obvious respectability-Secondly, on none of the three occasions, was Ramprapanna a witness Again, in view of the special circumstances in which the Plaintiff expressed her desire to sell the house he took her to a lawyer; and it was the lawyer and not any scribe at the sub-registrar's office who drafed the deed after consulting her. Again, it was the lawyer who took it to the Sub Registrar's Office, and on behalf of the platiff deposited the T. A. for the Sub Registrar Strictly speaking, it would have made no difference if the vender had been requested to come to the Sub-Registrar's office. But theory was anxious that the deed should be read out and explained to her in presence of the Sub- Registrar in a manner more satisfactorily than was possible in the office. This was also done. The evidence of the lawyer Mohanlal Gupta (D.W.4) and Mahadeo Govind a clerk of the Sub Registrar's Office (D.W.5) shows that all the steps necessary were taken and special care was exercised, to prevent any misapprehension. It is difficult to see what more even the most caution purchaser could have done.

It is, therefore, clear that the Plaintiff sold the property for consideration with full knowledge of what she was doing. For one thing, she is not a person who either on account of seclusion(sic) or on account of ignorance of worldly ways, is specially exposed to risk of being cheated nor is there any case of actual or probable influence. For another the evidence on all the requirement is full and reliable.

Ground No. 4: Though it was not in the plaint, it was alleged in appeal and repeated here, that the sale was void or at least(sic) at the deed for registration had not been presented either by the vendor or vendee, or by aperson who was authorised to present it. Section 32, of the Registration Act has been referred to. It is urged that Mohanlal Gupta lawyer who physically placed the deed in the hands of the Sub-Registrar, had not been authorised to present it and therefore sub-sequent registration by the Plaintiff was illegal on technical gerounds. The rulling Sri Sri Sri Kishore Chandra Singh Deo Vs. Babu Ganesh Prasad Bhagat and Others, ), has been cited, which also refers to Hambu Prasad Privy Council 16); Bharat Indu v. Hakim the two earlier rulings of the Privy Council.

The first point to note is that the questions regarding the presentation and authority to do so are mixed ones on which factfull(sic) evidence is possible. So a patty when does not raise these at the trial and wants a decision in appeal or second appeal as if it is a point of law pure and simple is seeking to put the other side to a serious disadvantage. Looked at that way, the proper course is to Ignore this ground.

Actually, as the evidence stands, this ground is really of no force Presentation for the purpose of secotion 32 of the Registration Act, is not the merely physical act of handing over the document to the Sub Registrar but the handing over "by the person who desires registration, with a view to get it registered." The purpose of the handing over as well as the attendant circumstances have to be examined to see whether the person, who is handing over, is really presenting it or the executant is presenting it, the messenger being no more than the physical or the mechanical agency. The problem has been fully dicision and elucidated in the two Privy Council rulings already referred to and the distiction clearly brough out in the second of them (Bharat Indu v. Hakim Mohammad Hamid Ali AIR 1921 PC 93). In that case the executant was ill and sent his servant with the document to the Sub-Registrar. The latter placed the document with him and deposited the commision fee so that the Sub Registrar could go to the spot and register it. He accordingly did so and on the executant's instructions made over the document to another person. The Prevy Council distinguished this situation from that in the earlier case (Jambu Prasad v. Mohammad Nawab Aftab Ali, (AIR 1914 PC 16); and holds that the presentation of the document was by the executant and not by the messenger or servant because:

In the present case, it is the person who desired to present and purported to present who took the further step and admitted the execution.

In the instant case also the lawyer was no more than a messenger who went to request the Sub-Registrar to come to the house to get the document registered. The facts of the case in the Supreme Court decision ( Sri Sri Sri Kishore Chandra Singh Deo Vs. Babu Ganesh Prasad Bhagat and Others, ); are altogether dissimilar. Thus even as a technical point raised at a belated stage, this ground has no force.

In the result, the second appeal is dismissed with costs and pleaders fee according to rules payable by the Plaintiff-Appellant to the Respondent-purchaser.