P L D 1965 Dacca 531 (PLP)

"Mere execution, though unaccompanied by duress, protest or obvious signs of misunderstanding or want of comprehension, is in itself no real proof of a true understanding mind in the executant. Evidence to establish such comprehension is most obviously found in proof that the deed was read over to the settler and, where necessary, explained. The extent and character of the explanation required must depend on the circumstances. Length, intricacy, the number and complexity of the dispositions of the unfamiliarity of the subject‑matter are all reasons for requiring an increased amount and efficiency of explanation . . . . . . . . Fraud, duress and actual undue influence are separate matters." In the case of Nibaran Chandra Mukerji and another v. Niru pama Debi and another (26 C W N 517), it has been laid down that the Court must satisfy itself upon the evidence that the document was executed by the pardanashin lady with full understanding of what she was about to do, that she had full knowledge of the nature and effect of the transaction and that she had independent and disinterested advice in the matter. In the case of Ayana Dasi v. Arena Bala Dasi and others (P L D 1961 Dacca 140), Chowdhry, J., as he then was, made the following observa tion:‑ "According to the established principle, in case of a document executed by an illiterate pardanashin lady, the burden lies on those who seek to hold the lady to the terms of her deed to satisfy the Court on evidence that the deed was actually executed by her with full understanding of what she was about to do; that she had full knowledge of the nature and effect of the transaction into which she is said to have entered; and that she had independent and disinterested advice in the matter." The evidence of Muker Ali (D. W. 3) shows that the docu ment was not fully explained to the plaintiff. The trial Court held that the document was not fully explained to the. plaintiff. On this point the learned Subordinate Judge departing from the established principle that the document is to be read over and explained to the executant who is an illiterate pardanashin lady enunciated a new principle in the following terms:‑ "The kobala might have been read over by the scribe. But it is a fact unfolded by the deposition of the D. Ws. 1 and 2 that Muker Ali again explained in short the contents of the documents and the nature of the transaction. I think that is the best form of explaining a document before a pardanashin illiterate woman. If a document is read out from the beginning to end a pardanashin illiterate woman containing so many terms which is not intelligible to the, executant, there is every possi bility of creating confusion in the mind of the pardanashin illiterate woman. But, if one or two words are stated before a pardanashin illiterate woman in my view, that will have the effect of explaining the document more clearly and precisely to the pardanashin woman. In this case when Moker Ali had explained to the plaintiff that she was going to execute a kobala in favour of her brothers, the defendants Nos. 1 and 2, for Rs. 1,000, I think that is the best form of explaining the document and the plaintiff could clearly understand what transaction she was going to enter into. It had a better effect upon the mind of the plaintiff than the effect which could be produced upon her mind by reading of the entire document to her." The learned Subordinate Judge totally misconceived the principle of law regarding the explanation and reading over of the contents of a document to a pardanashin illiterate lady. The trial Court also held that plaintiff had no independent advice in the matter of executing the kabala. . The learned Sub ordinate Judge did not at all advert to this finding of the trial Court. The learned Subordinate Judge held that as the plaintiff, her husband, her father‑in‑law and villagers knew about the kabala, it would follow that the document was a genuine one. The learned Subordinate Judge erred in holding from know ledge about execution of a kabala that it was a genuine document. In view of the discrepancies, in the evidence of P. Ws. Hasan Ali and Mukar Ali, the,trial Court disbelieved about the passing of consideration on the kabala. Defendant No. I Naimuddin (D. W. 1) stated that he did not demand any receipt for the consideration money paid to the plaintiff. Hasan Ali (D. W. 2) deposed that Mukar Ali granted the receipt for Rs. 1;000 with the left thumb‑impression of the plaintiff affixed to it. Mukar Ali (D. W. 3) in his evidence explained it as endorsement of the registration receipt. The learned Subordinate Judge, without consideration of the reasons given by the trial Court for disbelieving the evidence regarding passing of consideration on the kabala, came to .the conclusion that consideration passed on it. This finding without advertising to the reason given by the trial Court is not binding in second appeal. The contents of the kabala were not fully explained to the plaintiff. There is no evidence that she understood the contents of the document. She had no independent and disinterested advice in this matter. No consideration did pass on the kabala. The trial Court rightly held that the kabala was fraudulent, void, inoperative, and was liable to be set aside. The learned Advocate on behalf of the appellant has argued that the lower appellate Court erred in holding that the suit was barred by limitation. The contention of the learned Advocate is that for the purpose of limitation, the suit is to be deemed to have been instituted on the date on which the application for leave to sue as a pauper is filed. A petition to sue in forma pauperis is a plaint from the date on which it is filed. This view is supported by the) decision in the case of Stuart Skinner alias Nawab Mirza v. William Order and others ( L R 6 I A 126). In that case their Lordships of the Privy Council held that the petition to sue as a pauper is a plaint and the suit must be deemed to be instituted when the application was filed. If the Court rejects the application under Order XXXIII, rule 5 or refuses to allow the applicant to sue as a pauper under Order XXXIII, rule 7 of the Code of Civil Procedure, it may treat the application as an unstamped plaint and either before or at the time of passing the order under Order XXXIII, rule 5 or rule 7 of the Code of Civil Procedure it may, in its discretion under section 149 of the Code, allow the applicant C time to pay the requisite Court‑fees and upon such payment, for the purpose of limitations the suit will be deemed to have been instituted on the date on which the application to sue as a pauper was filed. This view finds support in the cases in 179 I C 271 and Chudaman Shamrao Rangari v. Babaji Daduappa Wani and others. (A R 1944 Nag. 357). In the case of Kali Dasi v. Santosh Kumar Pal and others (179 I C 271), it has been held that where a suit in forma pauperis is filed by a person within the period of limitation but the application to sue as a pauper is rejected and he is required to pay the Court -fee on a date beyond the period of limitation, the time being granted under section 149 of the Code of Civil Procedure and the Court‑fee is paid within such time, the suit is to be regarded as filed when the pauper application was made. In the case of Chudaman Shamrao Rangari v. Babaji Dadauapa Wani and others it has been laid down that if the Court decides to reject the application under Order XXXIII, rule 5 or refuses to allow‑the applicant to sue as a pauper under Order XXXIII, rule 7, it may treat the application as an unstamped plaint and either before or at the time of passing the order under rule 5 or rule 7 of the Code, it may in its discretion under section 149 of the Code, allow an applicant time to pay the requisite Court‑fees and upon such payment within the time allowed, number and register the plaint and that in such a case for the purpose of limitation, the suit will be deemed to have been instituted on the date on which the applica tion for leave to sue as a pauper is made. Mr. Meser Ali, the learned counsel on the side of the respondents Nos. I and 2 has contended in reply that when an application to sue as a pauper is‑ rejected, the date of filing the application to sue as a pauper cannot be deemed as the date of the institution of the suit and that on the refusal of the application under Order XXXIII, rule 7, the Court. cannot, under section 149 of the Code of Civil Procedure, allow the applicant to pay the requisite Court‑fee and treat the application as a plaint. In support of this contention reference has been` made to the cases in I L R 24 Cal. 889, I L R 17 Lah. 831, 43 C W N 686 and Vamanrao Lallubhai v. Pranlal Bhagwandas (A I R 1944 Bom. 63). In the case of Aubhoya Churn Dey Roy and another v. Bissesswari and others (I L R 24 Cal. 889), it has been held that where an applica tion for permission to sue in forma pauperis is rejected and a full Court‑fee is paid for a suit for the same relief, the suit must be considered, for the purposes of limitation, to have instituted only after the payment of the Court‑fee, and not at the date of presentation of the petition to sue as a pauper. But this principle was enunciated in a case in 1897, i.e. long before the Code of Civil Procedure, 1908 (Act V of 1908) with section 149 came into force. In the case of Alopi Parshad and others v. Mst. Gappi and others (I L R 17 Lah. 831) it has been laid down that if an application to sue in forma pauperis is rejected, It cannot be deemed to be a plaint and on payment of Court‑fee after the application to sue in forma pauperis is rejected, it cannot be deemed to be a plaint. That case is distinguishable, because in that case when the application for leave to sue in forma pauperis was rejected, the Court simply made a remark that the plaintiff was at liberty to pay the Court‑fee, but the Court did not make any order at that time allowing him to pay the Court‑fee. In the present case the application to sue as a pauper was rejected on 10‑1‑1956 but the Court passed an order on that very date to pay the Court‑fee by 22‑1‑1956 which happened to be a Sunday. On 23‑1‑1956 plaintiff prayed for time to pay the Court‑fee. Time, was allowed to 24‑1‑1956. Court‑fee was paid on that date. In the case of Biswanath Das v. Khejarali Molla (43 C W N 686), it has been held that when an application to sue as a pauper is dis missed under Order XXXIII, rule 7 of‑the Code, the Court cannot allow the plaintiff to pay Court‑fees and turn the plaint accom panying the application as a plaint in the suit. With great respect I cannot agree with this principle, in view of the decision of the Division Bench of the Calcutta High Court in the case of Jagadiswari Debi and others. v. Tinkari Bibi and others (A I R 1936 Cal, 28), and in the case Kali Dasi v. Santosh Kumar Pal. In the case of Vamanrao Lallubhai v. Pranlat Bhagwandas, it has been observed that where an application to sue‑ in forma pauperis is refused under Order XXXIII, rule 7 (3), the Court cannot under section 149 allow the applicant to pay the requisite Court‑fees and treat the application as a plaint. The petitioner's application to sue as a pauper in that case was dismissed under Order XXXIII, rule 7 as the application did not disclose a subsisting cause of action. No order was passed for payment of Court‑fees on the date on which the application was dismissed. The petitioner subsequently prayed in revision before the High Court that he might be allowed to proceed with the suit on payment of proper Court‑fees. It was held that the petitioner was not entitled to convert his original application into a suit by payment of proper Court‑fees. But in the present case the order to pay the Court‑fees was passed on the very date on which the petition to sue as a pauper was rejected. In the facts of the present case, the date .of filing of the application to sue as a pauper, i.e. 11‑5‑1955, is to be deemed as the date of the institution of the suit. The kabala was executed on 13‑5‑1952. The suit was within time. The learned Subordi nate Judge erred in ‑holding that the suit was barred by limitation. In the result, the appeal is allowed with costs. The judgment and decree passed by the lower appellate Court are set aside, and those of the learned Munsif are restored. Leave to appeal under clause 15 of the Letters Patent, is granted. K. B. A. Appeal accepted.