S.H.A. Raza, J. -

This second appeal is directed against the Judgment and decree dated 22-12-1988 passed by the III Additional District Judge, Barabanki, in civil appeal no. 1 of 1985 in re: Hubraja alias Barki v. Laxmi Narain and another, allowing the plaintiff/respondent's appeal filed against the judgment and decree passed by the Munsif Ram Sanehi Ghat, district Barabanki, in regular suit no. 35 of 1979 in re : Smt. Hubraja alias Barki v. Laxmi Narain and another dismissing the plaintiff/respondent's suit for cancellation of sale-deed which she allegedly executed in favour of defendant/ appellants. The learned counsel for the appellants challenged the judgment of the first appellate court dated 22-12-1988 passed in civil appeal no. 1 of 1985 on the following substantial questions of law: --

(a) Whether the burden of proof could legally be shifted to the defendants/appellants under the circumstances of the present case as had been done by the appellate court below and the decree passed by the said court on that basis is sustainable in the eyes of law?

(b) Whether the burden of proof lies on the plaintiff/respondent specifically when it has been specifically pleaded by the plaintiff/respondent in her plaint that a fraud has been acted upon here by the defendants/ appellants through the instrumentality of one Chandrapal and thereby the sale deed in question has been obtained ?

(c) Whether the endorsement made by the Sub-Registrar on the sale deed in question at the time of its presentation before him for registry in the course of his usual discharge of his duties is admissible in law and it has its evidentiary value?

(d) Whether the finding recorded by the appellate Court below basing on contradictory pleadings of the plaintiff/respondent in her pleading here and Revenue Court and ignoring the important aspect of the matter available in favour of the defendants/appellants, is a perverse finding and the same is not sustainable in the eyes of law?

2. The brief facts giving rise to this appeal are that Smt. Hubraja who is arrayed as respondent to this appeal has filed a suit against the defendants/appellants for cancellation of sale deed in the court of Munsif, Ram Sanehi Ghat, district Barabanki. She has averred in the plaint that she is Bhumidhar in possession over the land in dispute and she had great faith and confidence on defendant No. 3 Sri Chandrapal. There existed a family dispute between her late husband and Sarva Sri Laxmi Narain and Rameshwar and they won over one Shri Chandrapal, who was known to her. In July 78 they took Smt. Hubraja to Tahsil Haidergarh on the pretext of getting her fertilizer, and there obtained her signatures on various papers and produced her before some officers. As she had great confidence upon Shri Chandrapal, she acted on his instructions. She further averred that neither she executed any sale deed in favour of the respondent nor received any consideration for the said amount. When she was informed that respondent committed breach of faith, only then she filed the present suit.

3. The defendants denving the allegations, stated in their written statement that they were carrying on 'Batai' into the land of Smt. Hubraja, who is all alone in her house and as she was having difficulty in managing her scattered land and property, she on her own accord executed the sale deed in favour of the respondent for a consideration of Rs. 33,000, which was paid to her on the same day at her house. They further stated that Smt. Hubraja accompanied them to Haidergarh of her own free will, executed the sale deed with her full understanding.

4. The Counsel for the appellants has assailed judgment of the first appellate Court mainly on the ground that it has wrongly shifted the onus of proof upon the appellants. He further submitted that it was incumbent upon the plaintiff-respondent to prove the alleged fraud and as the sale deed was executed before the Sub-Registrar and he made an endorsement of respondent's presence before him in the course of usual discharge of his duty, hence the admissibility of the execution of the sale deed and its authenticity cannot be doubted. From the finding of fact recorded by the first appellate court, it is clear that the respondent-plaintiff is an illiterate and mentally deficient Hindu widow and is aged in between 65 to 75 years. Hence, it has to be seen as to whether the first appellate court committed any error in shifting the onus of proof upon the defendant-appellants to prove that she executed the sale deed after understanding the contents of the instrument.

5. In 1965 Allahabad Law Journal, 1080, (Paras Nath Rai v. Titesar Kunwar) this court has indicated the law regarding the transaction executed by a Pardanashin lady or an illiterate ignorant woman, though she may not be pardanashin, in the following words:

"Rules regarding transaction by a Pardanashin lady are equally applicable to an illiterate and ignorant woman, though she may not be a Pardanashin. It is not by reason of the Pardah itself that that the law throws its protection around a Pardanashin lady but by reason of those disabilities which a life of seclusion lived by a pardanashin lady gives rise to and which are consequently presumed to exist in the case of such a lady. But the disabilities which make the protection necessary may arise from other causes as well. Old age, infirmity, ignorance, illiteracy, mental deficiency in-experience and dependence upon others, may by themselves create disabilities that may render the protection equally necessary. If therefore, it is proved that a woman, although she is not a pardanashin lady, suffers from the disabilities to which a paradanashin lady is presumed to be subject, the validity and the binding nature of a deed executed by her have to be judged in the light of those very principles which are applied to a deed by a pardanashin lady where the plaintiff was illiterate and when she executed the deed in question she was not only more than sixty years old, but was also hard of hearing and she was described by the defendants themselves as a foolish and rustic woman completely devoid of intelligence & according to the finding of the lower appellate court she was correctly described as such and besides the defendants stood in relation to her in a position of active confidence, held-that there could be no doubt that she was as much entitled to the protection of the law as a pardanashin lady......"

"It is not necessary to ascertain whether fraud, misrepresentation or undue influence has been established when it has been found that the deed executed by a pardanashin lady has not been executed by her voluntarily and after appreciating the nature and import of the transaction, and the latter finding alone is sufficient for holding that the deed is not binding on her and it conveyed no title."

6. In Mst. Kharbuja Kuer v. Jang Bahadur Rai, AIR 1963 SC 1203, their Lordships of the Supreme Court have indicated as below:

"The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardanashin lady to establish that the said document was entered into by her after clearly understanding the nature of the transaction. It should be established that it was not her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it, but also by other evidence, direct and circumstantial."

7. In Smt. Saghiran v. Dy. Director of Consolidation and others, 1988 ALJ 956, it was held as under:

"Where A and B claimed right in the disputed land on the basis of an alleged sale deed executed by the petitioner, an old illiterate lady who asserted that A and B had obtained the sale deed by placing fraud upon her and by not making her understand the contents of the sale deed relied upon by them and though the lower courts after treating the petitioner as old illiterate lady placed the burden on A and B to prove that sale deed was not executed by her after appreciating the contents thereof, the revisional court accepted the alleged sale deed only on the ground that it is a registered document and it failed to meet reasoning of the lower courts whereby alleged sale deed was not treated as a valid and genuine document. In such circumstances, the approach of the revisional court was patently erroneous, perverse and unreasonable and burden has been placed upon wrong shoulder by it."

8. In AIR 1981 Allahabad 222 (Ashok Kumar and another v . Gaon Sabha, Ratauli and others) it was held as under.

"It is not merely by reason of Pardah itself that the law throws its protection around a pardanashin lady but by reason of those disabilities to which the life of action of people living in seclusion gives rise to the disabilities and with which a pardanashin suffers. Thus the protection necessarily arises from the cause such as old age infirmity, ignorance, illiteracy mental deficiency, inexperience and dependence upon others. Hence when in a suit for cancellation of sale deed by the plaintiff an illiterate, rustic village woman who was not fully capable of understanding and distinguishing between good and bad, the defendant alleged that she had executed a sale deed in their favour, but the plaintiff was emphatic in her statement that she only intended to create a wakf and never intended to part with the property, the plaintiff being an illiterate rustic village woman would be entitled to the benefit available to a pardanashin lady and it could be said that she was made to sign a document, which she never intended to execute and hence the sale deed was liable to be cancelled."

9. Regarding the non-passing of consideration before the Registrar, it was further held: --

"When the parties are aware of their respective cases, the question of burden loses its importance, and it is not of much significance. Both the parties knew with respect to exchange of consideration with respect to the property involved in the sale deed. It has categorically been stated by the plaintiff that she did not receive any consideration. The copy of the sale deed also mentions that no money was passed over to the lady before the registering authority. Such a nature of transaction always raise doubt with respect to payment of consideration."

10. The fact that consideration of the sale deed was not paid to respondent Smt. Hubraja before the Sub-Registrar further strengthened her case that either the consideration of sale deed was not paid to her or she never intended to execute the deed.

11. It is admitted that Smt. Hubraja is an illiterate aged Hindu widow and she had also alleged that she did not possess sound understanding. In such a condition a very strong burden lies upon the person who propounds such a disposition of property by such a lady. In 6 OWN 169 Hanuman Sahu v. Abbas Bandi and in 1936 OWN 611 PC (Lala Kund Lal v. Musharrafi Begum and others) it was laid down that legal advice is not essential when language is simple and the transfer is not of an intricate nature and the lady is proved to possess business capacity. In the instant case there exists no evidence whatsoever that respondent Hubraja, possessed any business capacity.

12. In 2 OWN page 662 privy council, Faridunissa v. Mukhtar Ahmad it was laid down that the burden of proving the intelligent execution of a deed of Waqf executed by a Pardanashin lady is on those parties who set it up and rely upon it, They must satisfy the court that the deed has been explained to and understood by the party, thus under disability, either before execution, of after it, under circumstances which establish adoption of it with full knowledge and comprehension. It was further laid down that independent legal advice is not itself essential. The disposition must, however, be substantially understood and must really be the mental act, as its execution is the physical act, of the person who makes it.

13. In 8 OWN Oudh Chief Court, In re: Afsar Begim v. Mohammad Yusuf (1931) at page 55 it was laid down that the words “duly executed and attested” in section 90, evidence act merely mean execution and attestation according to the formalities prescribed by Law. The question whether the document has been explained to the executants and whether she has fully understood the import and effect of it, is hardly a question of execution. Where, therefore, a plaintiff founds his title on a sale deed executed by a Pardanashin lady he must establish by positive evidence that the document was sufficiently explained to her and was understood by her, this being not a matter which can be presumed under section 90 of the Evidence Act.

14. In 10 OWN 889 it was held that if the executants is old and an illiterate lady and is at the same time pardanashin, the need of protecting her is greatest specially if those who have benefited by her disposition had been living with her for a long time and if by that disposition she has divested herself of a major portion of her property. The same principle was enunciated in 8 OWN 194 (Chandrani Kumar v. Sheo Nath.

15. In this appeal it was contended that evidence on record satisfactorily establishes that Smt. Hubraja had executed the sale-deed with full understanding of its contents. This is a question of fact. The first Appellate Court has found that as consequence of her mental state, illiteracy and old age Smt. Hubraja did not possess with full understanding of what she was doing at the time of the execution of the sale-deed. Hence this finding of fact cannot be disturbed in second appeal. There is nothing on record to prove that any independent advice was available to the lady at the time of execution of the sale deed.

16. If it is assumed that the alleged document was read out and explained to the respondent, even then it is not sufficient to discharge the burden which rests upon the appellant who claims right under a deed from aged, illiterate and mentally deficient lady. The appellants have failed to establish that the respondent knew what the consequences of her act were going to be and how they were to affect her. In this case it was necessary to establish that it was explained to the lady that by the execution of the sale-deed she would have to part with a part of her property. There is not an iota of evidence on the record to establish that any one explained these consequences to the respondent. There existed no evidence to establish that the respondent under stood the result of what she was doing and any independent advice was available to her at the time of execution of sale deed. The first appellate Court was fully justified in allowing the appeal and decreeing the suit of respondent/plaintiff. No substantial question of law is involved in this appeal.

17. The appeal is dismissed summarily.

(Appeal dismissed)

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Appeal dismissed.