1. This appear is directed against a decree in a suit to enforce a mortgage security executed by the appellant and her husband Radha Nath. Bose on the 3rd April 1899 in favour of Kishori' Mohun Roy, a money-lender of this city now represented by the plaintiffs-respondents. The mortgage which was jointly executed by the husband and wife was for a consideration of Rs. 14,500 and covered three properties. Out of the consideration a sum of Rs. 8,337-14 was due under two hand-notes executed on the 1st October 1898 in favour of Kishori Mohun by the husband of the appellant Bindubashini as her constituted attorney. A sum of Rs. 1,804-14 was covered by four hand-notes executed by Radha Nath himself in favour of Kishori Mohun on various dates between the 6th May 1895 and the 23rd March. 1899. A further sum of Rs. 4,357-3-10 is stated in the mortgage-deed to have been advanced in cash, at the time of the transaction, so as to bring up the total sum advanced to Rs. 14,500. The husband and the wife made themselves jointly and severally liable for the whole amount. Of the three properties covered by the security the first and the third belonged to the husband, and the second which was admittedly of substantial value was owned and possessed by the wife. The deed further recited that at the time of its execution documents of title were made over to the mortgagee; these included a power of attorney in English executed by the wife in favour of the husband on the 16th August 1889. The mortgage was signed by the husband as well as the wife who were both able to read and write and was attested by Promotha Nath and Nogendra Nath two of the sons of the executants. On the 14th June 1899, the document was produced before the Registrar by Radha Nath and the endorsement made at the time shows that execution was admitted by Radha Nath for himself and on behalf of his wife under the power-of-attorney which was produced before the Registering Officer. Nothing appears to have, been paid by the debtors towards the satisfaction of the mortgage-debt, and although one of the mortgagors, the husband, had assigned to the mortgagee two decrees for money which he held against certain other persons, the mortgagee does not appear to have realised anything thereunder in reduction of his debt. On the 19th August 1905, the representatives of the mortgagee commenced the present action against both the mortgagors for the realization of the principal and compound interest at 8 1/2 per cent, per annum with six monthly rests. The husband, who was the first defendant, resisted the claim on the ground that the plaintiffs were not the representatives of the original mortgagee, that he was entitled to claim certain deductions which the original mortgagee had promised to allow, and that as the decrees which had been assigned to the mortgagee had become barred by limitation through his laches, the plaintiff were bound to allow credit for whatever sum was realizable under those decrees. The wife, who was the second defendant, filed a separate written statement through the same pleader who appeared on behalf of the husband. In addition to the objections urged in the defence of her husband, she contended that the claim for compound interest was not maintainable and that the purport of the mortgage security in this respect as well as in any other respect had not been explained to her. An. examination of the written statement on the record shows that this paragraph originally stated that the purport of the mortgage-deed in this respect (that is, in respect of interest) as well as in some other respects had not been explained to her. But before the written statement was filed, the phraseology was altered so as to make the objections more comprehensive. The second defendant further stated in her written statement that she had not got money on account of the mortgage-deed. On these pleadings issues were framed on the 22nd: November 1905, and the eighth issue was in the following terms:
"Was any consideration money for the mortgage-deed paid to the defendant No. 2? Was the mortgage deed properly explained to her and is she bound by all or any of its terms?"
A, detailed reference to the other issues is not necessary for the disposal of the question which has been argued in this appeal. On the 2nd March 1906, after an order for the examination of the second defendant on commission had been made on the 20th February, she presented to the Subordinate Judge through a new pleader a petition (which had been drawn up on the 16th February but for some unexplained reason withheld for two weeks ) in which she alleged that the written, statement previously filed in her name, was really not her pleading, that she knew nothing about the mortgage-bond, that she had not executed it, had not received any money on account of it, had never authorised her husband to take any loan on her behalf and that consequently she was not personally liable for the money and no proceedings could be taken against her: property. The successor of the Subordinate Judge who at this time was transferred examined the lady at her residence in Calcutta on the 29th April in support, of her allegation that she had not signed either the vakalutnama or the written statement previously filed on her behalf. On the< 16th May 1906, the Subordinate Judge held' upon the evidence before him that the lady was a tool in the hands of her husband and sons, that she had falsely dented her signatures on the vakalutnama and the written statement and that consequently the petition filed on the 2nd March 1906 for supersession of the original written statement filed on the 14th November 1905 must be rejected. The case was subsequently heard on the merits and after the case for the plaintiffs had closed the defendants applied for time to be ready with their evidence. This unusual prayer was granted by the Subordinate Judge and the result was that after the plaintiffs had closed their case on the 29th October, the defendants obtained an adjournment till the 7th November when their evidence was taken. The Subordinate Judge ultimately held that due execution of the document by both the mortgagors was proved and that the deed had been read over and explained to the lady who was in the words of the Subordinate Judge, an intelligent lady of acute understanding and knew to read and write and was aware of all the conditions set forth in the mortgage-bond. The Subordinate Judge also found upon the third and fourth issues that the mortgagees had, through their own laches, allowed the assigned decrees to be barred by limitation and that they were consequently bound to allow credit for' all sums realizable thereunder. In this view of the matter he made in favour of the plaintiffs a decree for Rs. 15,571 with costs and interest.
2. The second defendant alone has presented this appeal against the decree of the Subordinate Judge and she has joined as respondents the plaintiff mortgagees as well as her husband. During the pendency of the appeal the respondent Radha Nath died on the 7th November 1907 and his sons have been brought on the record as his legal representatives. The learned Vakil who has appeared in support of the appeal has argued that the mortgage-deed was not operative as against the wife because it is not proved that she received any portion of the consideration or that the sums advanced on the hand-notes executed on her behalf by her husband were taken with her knowledge or authority, that the power-of-attorney on the basis of which the hand-notes were executed was not shown to have been read over or explained to her, that sufficient grounds have not been established for reception of secondary evidence of the terms of the power-of-attorney, that the power-of-attorney was a general power and did not confer on the husband an unlimited authority to borrow on behalf of his wife, that the 'mortgage-deed was neither read over nor explained to the lady, that she was not aware that the effect of the deed was to make her property liable not only for her own debts but also for those of her husband, that as at the time of the execution of the deed her interest was in conflict with that of her husband it was essential to prove that she had independent advice and finally that the evidence disclosed that the document had not been executed under circumstances which would make it binding and operative as against a pardanashin lady on the principle laid down in a series of decisions of their Lordships of the Judicial Committee. In support of this position reliance has been placed upon the cases of Sudisht Lal v. Musammat Sheobarat Koer 8 I.A. 39 : 7 C. 245; Annoda Mohun Rai Chowdhri v. Bhuban Mohini Debi 8 I.A. 71 : 28 C. 546 and Shambati Koeri v. Jago Bibi 29 1.A. 127 : 29 C. 749.
3. In answer to these objections it has been contended on behalf of the respondents that the defence was both dishonest and inconsistent, that it was not open to the lady in view of the decision of the Judicial Committee in Mahomed Buksh Khan v. Hosseini Bibi 15 I.A. 81 : 15 C. 684 to plead that she never executed the document and in the alternative that if she executed it, she did so under circumstances which did not make it binding upon her as a pardanashin lady and finally that the evidence proved conclusively that the lady executed the document with full knowledge of all its terms and their consequences.
4. It is necessary to state that on behalf of the appellant no contention was raised in this Court that the vakalutnama and the written statement originally filed on her behalf were forgeries, nor was any suggestion made that the mortgage-deed was not executed by her. We have carefully compared the signatures on the vakalutnama, the written statement and the mortgage-deed with the undoubted signatures of the lady and we are satisfied that any attempt to establish that the signatures on the vakalutnama, the written statement and the mortgage-deed were forged must prove infructuous. We must, therefore, proceed to deal with the appeal on the assumption that the original written statement was filed on behalf of the lady and also that the mortgage-deed was as a matter of fact executed by her.
5. With reference to the argument of the respondents, that the defence is inconsistent, we may observe that the decision of the Judicial Committee in Mahomed Buhsh Khan v. Hosseini Bibi 15 I.A. 81 : 15 C. 684 is clearly distinguishable. In that case it was pleaded with reference to a deed alleged to have been executed by a pardanashin lady, that ' it was not genuine and in the alternative that it had been executed under undue influence. The Judicial Committee pointed out that the latter defence was absolutely inconsistent with the alternative case that the document had not been executed with her knowledge and consent, and that consequently the latter part of an issue which raised both the questions ought not to have been admitted. In the case before us, the defence taken in the original written statement was perfectly self-consistent. There was no suggestion made at that stage that the document had not been executed by the lady. It was only at a later stage of the proceedings that she endeavoured to file a new written statement which, if admitted, would have made her case contradictory to her previous allegations. This attempt failed and, in our opinion, the Subordinate Judge was amply justified in the course which he pursued. The case of the lady, therefore, as it stands at present in its original form, is not open to objection on the ground of inconsistency, and the point raised in the eighth issue must consequently be considered. Before we proceed to do so, however, it is desirable to state the principles in the light of which the evidence must be examined.
6. In one of the most recent oases on the subject Shambati Koeri v. Jago Bibi 29 1.A. 127 : 29 C. 749 the Judicial Committee referred to the well-known rule laid down in Sudisht v. Sheobart, that in the case of deeds and powers executed by purdanashin ladies, it is requisite that those who rely upon them should satisfy the Court that they had been explained to and understood by those who executed them. The same view had been previously taken in the cases of Hodges v. Delhi and London Bank 27 I.A. 168 at p. 176 : 23 A. 137 and Annoda, Mohun v. Bhuban Mohini 8 I.A. 71 : 28 C. 546 and was reaffirmed in Kishori Lal v. Chunnilal (1909) 1 Ind. Cas. 128 : 9 C.h.J. 172 : 13 C.W.N. 370 : 11 Bom. L.R. 196 : 31 A. 116 : 19 M.L.J. 186. It is not necessary to examine in detail the earlier decisions of the Judicial Committee in the cases of Moonshee Buzloor Ruheem v. Shumsoonnissa Begum 11 M.I.A. 551 at p. 585 : 8 W.R. 3 (P.C.); Geresh Chunder Lahoree v. Musammat Bhuggobutty Debia 13 M.I.A. 419 : 14 W.R. 7 (P.C.), Syud Fnzzul Hossein v. Amjud Ali Khan 17 W.R. 523; Ashgar Ali v. Delroos Banoo Begum 3 C.324; Tacoordeen v. Nawab Sped Ali I.A. 192 : 21 W.R. 340 : 13 B.L.R. 427 and Lala Amarnath v. Rani Achan Kuar 19 I.A. 196 at p. 200 : 14 A. 420. These cases recognised the principle that the Court should be careful to see that deeds taken from purdanashin 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. Some of the earlier cases in this Court notably those of Kanarial Jowhari v. Kamini Debi 1 B.L.R.O.C.J. 31 (Note) and Roop Narain Singh v. Gujadhur Pershad Narain 9 W.R. 297 appear to affirm the same doctrine on the ground that undue influence is presumed to have been exercised unless the contrary is shown. It is not necessary for our present purposes to discuss whether this view of the matter can be supported. But it may be pointed out that the cases may broadly be divided into two groups : in the first class of cases,. the person who sought to hold the purdanashin lady to the terms of her deed was one who stood towards her in a fiduciary character or in some relation of personal confidence; in the second class of cases, the person who sought to enforce the deed was an absolute stranger and dealt with her at arms length. In the former class of cases, where fiduciary relation exists, manifestly the Court will presume confidence put and exerted; in the other class of cases, where no such relation exists, the Court will require the confidence and influence to be proved intrinsically, a distinction which does not appear to have been always kept in view. It may further be added that where no special circumstances are shown to exist, where for instance it is proved that the purdanashin lady was of business habits, was literate and of considerable intellectual capacity the Courts have latterly been less inclined to interfere with deeds which have been prima facie properly executed or to interfere with transactions to which her consent had been deliberately given : see for instance the cases of Badi Bibi Sahiba v. Sami Pillai 18 M. 257 at p. 262; Khatija v. Ismail 12 M. 380 at p. 384; Mahomed Buhsh v. Hosseini Bibi 15 I.A. 81 : 15 C. 684 and Ismail Mussajee v. Hajiz 33 I.A. 86 : 10 C.W.N. 570 : 3 A.L.J. 353 : 3 C.L.J. 484 : 8 Bom. L.R. 379 : 16 M.L.J. 166 : 1 M.L.T. 137 : 33 C. 773. In other words as observed by Mr. Justice Straight in the cases of Beharilal v. Habiba Bibi 8 A. 267 and Kaniz Fatima v. Abbas Ali A.W.N. (1887) at p. 84 which are referred to in Mariam Bibi v. Sakina 14 A. 8 the Court when dealing with a deed alleged to have been executed by a purdanashin lady must, before it gives effect to it, satisfy itself upon the evidence, first that the deed was actually executed by her or by some person duly authorized by her with a full understanding of what she was about to do : secondly, that she had full knowledge of the nature and effect of the transaction into which she is said to have entered, and, thirdly, that she had independent and disinterested advice in the matter. Let us now test the evidence in the present case in the light of these principles.
7. There is no dispute in the present case that the deed was actually executed by the appellant; it bears her signature in more than one place and the genuineness of these signatures had not been, and, in our opinion, cannot be successfully questioned. The two questions, therefore, which arise for consideration are, first, whether she fully understood the nature and consequences of the transaction into which she entered and, secondly, whether she had independent advice in the matter. So far as the first of these points is concerned, we have the testimony of Nil Kamal Mukherjee and Lalit Kishore Dey, both officers of the plaintiffs, as to the circumstances under which the execution took place. Nil Kamal asserts that he read over and explained the document to the lady before she signed it, which she subsequently did in his presence. It is suggested that it is unlikely that a purdanashin lady would appear in the presence of a stranger and execute the deed. We do not see, however, any inherent improbability in the story narrated by Nil Kamal. Nil Kamal was apparently on terms of intimacy with Radha Nath who was well-known to his master and had business transactions with him. Bindubhashini, though purdanashin, was an elderly lady, and it is not at all improbable that she should appear and sit against one of the leaves of one of the doors of the baitakkhana and execute the deed. Lalit Kishore substantially confirms the story. It was argued by the learned Vakil for the appellant that although the deed might have been read over to the lady, it was not explained to her as required, and reference was made in this connection to the judgment of the Judicial Committee in the case of Annoda Mohun Rai Chowdhri v. Bhuban Mohini Debi 8 I.A. 71 : 28 C. 546. The deed here, however, was of the simplest character. It described the previous debts due to the creditor and the properties by which it was intended to secure the repayment thereof as well as of the advance made at the time of the execution of the deed, and, finally stated that the parties made themselves jointly and severally liable for the whole debt. The lady was herself able to read and write, and there is no foundation for any possible pretence that the deed was read out in such a way as not to convey its true meaning to the executant. We must hold, therefore, that the deed was intelligently executed, and that the lady fully understood the nature and effect of the transaction into which she entered. As regards the second question, namely, whether the lady had independent advice, it may be conceded that there is some apparent force in the contention that the interest of the husband at the time was in conflict with her own interest. It seems, it was originally intended when the draft of the mortgage was drawn up, that the deed should be executed by the husband alone, This theory, is supported by two alterations made in the mortgage-deed after it had been engrossed by which the vernacular word corresponding to my' was changed to oar.' The creditor apparently declined to accept a mortgage from the husband alone as the second property stood in the name of the wife. But the agreement to make the wife join in the deed must have been concluded before the mortgage-deed was drawn up, because it is quite dear from an inspection of it that it was engrossed with the names of both the executants on it. Under these circumstances it, no doubt, became necessary for the husband to obtain the consent of his wife to be a joint executant of the deed. The lady, however, had undoubtedly opportunities for independent advice. Her three sons who were grown up were about her at the time, lived in the same house and knew all about the transaction. They in fact were the persons who would be ultimately affected by the mortgage if their mother joined in the transaction and it is not difficult to infer from the evidence that they probably interfered. Two of these sons have been examined in the present case and their testimony must be treated as unreliable. They endeavoured to make out that their mother was not present at the time of the execution. They even doubted whether the signatures of their mother on the mortgage-deed were genuine and they suggested that the document was not executed by their mother at the same time as by their father but if at all on a subsequent occasion. This story has been rejected by the Subordinate Judge and in our opinion very properly. One, fact however, is, upon the evidence, clear beyond dispute, namely, that the lady at first expressed some unwillingness to execute the deed. Upendro Nafch, for instance, says that the mortgagee Kishori told his father that his mother must sign the document to which his father replied that it was impossible that she would sign it. He does not, however, indicate what conversation followed. As a matter of fact, the lady did subsequently join in the execution of the document. The legitimate inference appears to be that the lady fully understood the nature of the transaction and at first expressed some unwillingness to join in the deed very probably in the interest and through the persuasion of her children. But subsequently she changed her mind and executed the document. We are satisfied upon the evidence that the deed was intelligently executed by the lady with full knowledge of its terms and of the precise nature of the transaction into which she entered and that she did so with the knowledge of her sons who were present at the time, were in a position to give her advice, and actually attested the execution of the deed. As the learned Judge points out in the judgment he found her an intelligent lady of acute understanding: who knew how to read and write and there is no foundation for the suggestion that the deed was executed by her under circumstances which did not make it binding upon her as a pardanashin lady. Indeed there is good reason to believe, as is indicated by the various proceedings in the suit in the Court below to which we have already referred, that this suit has been only nominally defended by her but really by her children for their ultimate benefit. In this view of the matter, it is not necessary to examine in detail the validity of the objection that the hand-notes mentioned in the mortgage-deed were executed by Radha Nath on behalf of his wife in excess-of his authority and without her assent and that the sums so borrowed are not shown to have been applied for her benefit. It may be assumed, that a general power-of-attorney does not necessarily imply an unlimited authority to borrow, and that the general words in a power-of-attorney confer upon the agent only such general powers as are necessary to carry out the special powers Bryant v. Banque Due Peuple (1893) App. Cas. 170, Ghasiram v. Raja Mohan Bikram Shah 6 C.L.J. 639. It may also be assumed that as the original power-of-attorney has not been produced and as every possible method available to enforce its production has not been exhausted, sufficient foundation has not been laid for the reception of secondary evidence of its contents. This, however, is of no assistance to the appellant, for if we hold as we do, that the mortgage was intelligently and voluntarily executed by her with full knowledge of its terms and their consequences, she must be taken to have affirmed the antecedent transactions into which her husband entered when he executed the hand-notes in favour of Kishori Mohun and borrowed the sums mentioned therein. If the appellant deliberately made herself jointly and severally liable for the debt incurred by her husband, she cannot now be permitted to turn round and question his authority to pledge her credit. It is further worthy of note that although her husband was alive at the time of the trial of the suit in the Court below, he never came into the witness box to narrate the circumstances under which the deed was executed and to contradict the version given on behalf of the plaintiffs by their witnesses. Upon an examination of the entire evidence on the record and upon a careful consideration of all the circumstances of the case we are satisfied that the mortgage-deed executed by the appellant is binding upon her and that the defence set up has completely failed.
8. The result, therefore, is that the decree made by the Subordinate Judge must be affirmed and this appeal dismissed with costs in favour of the plaintiff-respondents.