Rakesh Tiwari - (1.) -Heard Sri. K. S. Kushwaha, learned counsel for the appellant and Sr. A. N. Dubey, learned counsel for the respondents.
(2.) THIS appeal is directed against the judgment and decree dated 4.5.1977 passed by the Additional Civil Judge, Azamgarh in Civil Appeal No. 24 of 1976 arising out of Original Suit No. 295 of 1974 between Smt. Dulari, plaintiff and Krishna Kumar, defendant. The relief sought in this appeal is that the judgment and decree passed by both the courts below be set aside by dismissing the plaintiff's suit with costs. At the time of admission, the substantial question of law framed in this appeal was : "Whether the judgment of the court below is vitiated by a wrong approach to the facts in issue?" The facts in brief are that Original Suit No. 295 of 1974 was filed by Smt. Dulari for cancellation of the sale deed executed by her on 5.2.1973 in favour of the respondents, who are her son-in-law and husband of one of her daughters Smt. Champa Devi. The case of the plaintiff before the trial court was that she had four married daughters, i.e., Smt. Champa Devi, Smt. Subhawati Devi, Durgawati Devi and Smt. Prabha Devi. She was a widow and had inherited certain plots after the death of her husband, which was her only source of livelihood. She filed a suit on the ground that she was an old and pardanaseen lady and also hard of hearing. The trial court framed the following three issues on the pleadings of the parties : (1) Whether the sale deed in suit dated 5.2.1973 is liable to be set aside for the reasons given in para 12 of the plaint? (2) Whether the suit is barred by estoppel? (3) To what relief, if any, is the plaintiff entitled for? Relying upon Khatija Bi Sahiba v. Mohammad Madar Sahib, AIR 1955 NOC 3932, the trial court held that it is not enough for a lady, who claims to be a pardanaseen woman, to establish that there was some sort of seclusion. The expression is applied to the cases where a lady is always removed in complete seclusion. In view of the aforesaid expression, trial court denied to accept that the plaintiff was a pardanaseen lady ; while deciding issue No. 2, the trial court held that nothing was pointed out for application of a doctrine of estoppel in this case.
(3.) IN view of the findings that the plaintiff's suit was liable to be decreed with costs ; issue No. 3 was decided accordingly. Aggrieved by the order and judgment of the trial court, Krishna Kumar, son-in-law of Smt. Dulari and defendant in the suit, filed Civil Appeal No. 24 of 1976 in the Court of Additional Civil Judge, Azamgarh. The appellate Court dismissed the appeal holding that the respondent was a rustic, illiterate woman of old age and villager and she understood that she was asked only about the land, which she was offering herself a surety and, therefore, rule applicable to a pardanaseen lady will apply in her case also. The case of Paras Nath Rai v. Tileshra Kur, (1965) ALJ 1080, in which it has been held that the rules regarding transactions by a pardanaseen lady are equally applicable to an illiterate and ignorant woman, though she may not be pardanaseen. It was further held in this case that it was not necessary to ascertain whether fraud, misrepre-sentation or undue influence was established when it was found that a deed executed by a pardanaseen lady was not executed by her voluntarily. It was held that the deed is not binding on her and it conveyed no title.;