- (1.) S. K. Phaujdar, J. This second appeal was admitted two substantial questions of law. The questions were as follows: (1) Whether the suit for specific performance of contract to sell-could be legally decreed where the plaintiffs have failed to prove and the lower appellate court has failed to record a finding as to the payment of Rs. 1,500 to the deceased-defendant, Mst. Nasiran Bibi, prior to the execution of the said agreement to sell. (2) Whether the agreement to sell dated 16-7-1973 could prove the execution in question without proving its contents by reading over and explaining the same to the deceased defendant, who was an illiterate purdahnasheen lady.
(2.) TO appreciate these questions of law and before enterting upon a decision on these points, it is necessary to State the facts of the present case. A suit was filed by Mohd. Hasan and his two brothers in the year 1976 before the Munsif, Azamgarh, which was registered as Suit No. 369 of 1976, against one Nasiran Bibi (now deceaseds and represented through her legal representatives the present appellants ). The plaintiffs had filed the suit for specific performance of a contract that was entered into by the defendant with the plaintiffs. It was stated that Nasiran and 1/3rd share on the land in question. She had a talk with the plaintiffs for sale of her share on a consideration of Rs. 2,000 and agreed to execute a sale-deed. On 16-7-73 a "um of Rs. 300 was paid to her and an-agreement to sale was executed and registered. She had already obtained, earlier to this transaction, a sum of Rs. 1,500 from the plaintiffs. According to the plaint, only Rs. 200 remained to be paid. When the plaintiffs desired that the defendants should accept Rs. 200 and should execute a sale-deed as agreed and had stint a notice to that effect, neither the notice was replied to nor the sale-deed was executed. The defence case was that the defendant never executed any agreement for sale on 16-7-1973. It was stated that on that date the plaintiffs had come to the house of the defendant and requested her to sign papers to facilitate mutation in terms of an earlier sale. The defendant's son was not in the house on that date. The plaintiffs were the cousins of the defendant and she had full faith on them. Accordingly, she went with them and after the paper was scribed, she put her thumb-impression on it and she was instructed to admit her signature (thumb-impression) when asked by the Registrar. She never entered into an agreement nor did she receive any money towards any agreement either on that date or prior to it. The deed of agreement was made on a collusion between the witnesses of the deed, the plaintiffs and the officers in the registering office. She denied to have receive any notice. The trial court decreed the suit of the plaintiffs on 11-5-1977 on a finding that there was an agreement for sale on 16-7- 1973 and the plaintiffs were entitled for a specific performance of the agreement. The defendant preferred an appeal before the Civil Judge, Azamgarh. Which was registered as Civil Appeal No. 38 of 1978. The appeal stood dismissed by the judgment and decree dated 29-10-79 whereafter the present appeal has been preferred by the legal representatives of the deceased defendant, Nasiran Bibi.
(3.) THE learned counsel for the defendant-appellants urged that the plaintiffs' suit could not have been decreed without proof of the fact that the payment of Rs. 1,500 to Nasiran and the courts below failed to record any finding on such payment and as such the decree could not be sustained. It was also urged that Nasiran being a rustic unlettered purdahnasheen lady, the onus of proof of due execution of the agreement to sell lay on the plaintiffs and the plaintiffs failed to discharge this onus. It was contended on behalf of the respondents that the second appellate court could not go against the findings of fact consistently arrived at by the courts below and the onus lay on the defendant to prove that there was no agreement to sell as the defendant was a lady who knew fully well what were legal transactions and how a registration was made as she had in past executed other documents before the registering authorities. It was contended that the courts below had given clear find ings on the transaction of payment of Rs. 1,500. The learned counsel for the appellant placed before me several decisions in support of his contentions. Reliance was placed on a decision of the Privy Council in the case of Mst. Fariddun Nisa AIR 1925 PC 208. It was observed herein that "the parties to prove the State of seller's mind are the parties who set up and rely on the deed. They must satisfy the court that the deed has been explained to and understood by the party thus under disability, either before execution or after it, under cir cumstances which establish adoption of it with full knowledge and comprehension. " Reliance was also place on a decision of the Division Bench of the Allahabad High Court in the case of Mst. Izharfatima Bibi, AIR 1939 All 348. The court dealt with an alleged execution of a deed by a purdahnasheen lady and with the question of burden of proof on the point. It was observed" in the case of a purdahnasheen lady the law places a very heavy burden on those who found a claim on a document executed by her. Those who found upon the deed must show affirmatively and con clusively that the deed was not only executed by, but was explained to, and was really understood by the grantor. " A similar view was taken by another Division Bench of the Allahabad High Court in a subsequent decision in the case ofdaya Shanker v. Smt. Bachi, AIR 1982 All 376. It was observed herein that the law presumes prima facie in favour of the deeds being duly executed. So, ordinarily, the person who challenges the validity of a transaction on the ground of fraud, undue influence etc. . . . . . . . . . . . . . . faith, has a discharge the burden of proof which rests on him. But the major exception to this rule is that the initial burden would not shift to the party who challenges the transaction and will instead be cast on the person who rely on such deed if a relationship of "active confidence" or fiduciary relationship between the contracting parties, such as guardian and ward, agent and principal, doctor and patient, spiritual advisor and disciple, trustee and cestui qui trust etc. The probability of dominating over the will of another party arises either directly from the very nature of the relationship existing between the parties or sometimes from a peculiar handicap or disability from which the other party suffers. Thus, Section 111 of the Evidence Act has to be read along with the provisions of Section 16 of the Contract Act.;