Decided on October 19,1964



- (1.) THE appellant, a bank in liquidation, filed a suit for recovery of over Rs. 5,000 from the 1st defendant, the husband of the respondent, on an overdraft guaranteed by the respondent and secured by a mortgage of her immovable properties by deposit of title deeds; and Raman nayar, J. , decreed the suit with costs against the husband, but dismissed the same with costs against the respondent and her properties. In appeal the bank questions the correctness of the decision; and claims a decree against the respondent and her properties as well.
(2.) THE respondent, a Muslim woman, averred in her written statement that she had no knowledge of her husband's dealings with the bank and that she never guaranteed his debts. She said that her title deeds were in the custody of her husband and that he might have handed them over to the bank without her knowledge. She pleaded further that she signed the memorandum of deposit of title deeds and the guarantee bond; but, she did so without knowing their contents, since her husband asked her to sign. Her further allegation was that she was an illiterate woman, completely dependant on her husband for the management of her affairs; and that she used to sign whatever papers he asked her to sign without caring to ascertain their nature or contents. The only witness examined on the side of the bank was pw. 1, who was the Secretary of the bank at the relevant time. Raman Nayar, J. did not rely on the evidence of this witness, as the witness was a person of no character and as he was admittedly guilty of breach of trust of the bank's funds to the tune of about two lakhs of rupees. We do not think that any serious exception can be taken to this. The 2nd defendant was examined on commission. She deposed that she was following purdah; and that she signed the documents, because her husband wanted her to sign. She also stated that she did not know the contents of the documents when she signed them; and that she came to know about the guarantee to the bank only when she obtained notice in the suit. Again, she said that she was illiterate and that she did not know English or Malayalam. Raman Nayar, J. says: "apart from the fact that she is illiterate, she is a Muslim woman and, even if she is strictly speaking not purdah-nishin, I think it would not be wrong to say that, generally speaking Muslim women in this state are comparatively ignorant and backward. In the case of such a person as the 2nd defendant, I should think that the ordinary presumption which may be drawn under S. 114 of the Evidence Act, that a person who subscribes to a document subscribes to it with knowledge and understanding of its contents, is so attenuated as to be scarcely available, so that 1 think that the question whether what the 2nd defendant purported to do under Exx. P-4, P-5 and P-6 was her mental act must be decided on the evidence without the aid of any presumption arising either on the ground that she is a purdah-nishin woman on the one hand, or from the circumstance that she has admittedly signed those documents on the other. " Our learned brother says at another portion of the judgment that it might be that the 2nd defendant was not a purdah-nishin in the strict sense of the term; and concludes that having regard to the fact that the 2nd defendant was an illiterate and semi-gosha woman and a complete stranger to pw. 1, a man of affairs like him would not have put through a transaction with her without securing independent evidence of it in the shape of attestation by independent witnesses to the documents effecting or evidencing the transaction.
(3.) FROM these it is evident that our learned brother cast the onus of proof on the bank without drawing the presumption under S. 114 of the Evidence Act, on the ground that the 2nd defendant, though not a purdah-nishin in the strict sense of the term, was a semi-gosha woman belonging to the Muslim community of this State, whose women are comparatively ignorant and backward. We do not think that this conclusion is warranted. In the recent decision of the Supreme Court in Mst. Kharbuis Kuer v. Jangbahabur Rai AIR. 1963 B. C. 1203 Subba Rao, J. observes: "in India purdah-nishin ladies have been given a special protection in view of the social conditions of the times; they are presumed to have an imperfect knowledge of the world as, by the purdah system they are practically excluded from social intercourse and communion with the outside world. " In making this observation Subba Rao J. has followed the privy Council decision in Farid-Un-Nisa v. Mukhtar Ahmad AIR. 1925 P. C. 204. There is no evidence in the case before us that the Muslim women of this State are purdah-nishins entitled to such protection, brought about by the social conditions under which they are excluded from social intercourse and communion with the outside world so as to make their knowledge of the world imperfect. In fact, Raman Nair, J. has not found that the Muslim women of the State are purdah-nishins. There is no such plea either in the written statement; nor does the evidence of the 2nd defendant go to that extent. But, what the learned judge finds is that the 2nd defendant is a semi-gosha Muslim woman. This idea of semi-gosha or quasi-purdah-nishin was not accepted by the Privy Council in Hodges v. The Delhi and London Bank, Limited ILR. 23 Allahabad 137. Lord Hobhouse observes: "it is abundantly clear that Mrs. Hodges was not a purdah-nishin. The term quasi-purdah-nishin seems to have been invented for this occasion. Their Lordships take it to mean a woman who, not being of the purdah-nishin class is yet so close to them in kinship and habits and so secluded from ordinary social intercourse that a like amount of incapacity for business must be ascribed to her, and the same amount of protection which the law gives to purdah-nishins must be extended to her. The contention is a novel one, and their Lordships are not favourably impressed by it. As to a certain well-known and easily ascertained class of women, well-known rules of law are established, with the wisdom of which we are not now concerned. Outside that class it must depend in each case on the character and position of the individual woman whether those who deal with her are or are not bound to take special precautions that her action shall be intelligent and voluntary, and to prove that it was so in case of dispute. ";

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