Pardanashin
Woman
Poor and
illiterate though not pardanashin—Document executed by—
According to the established principle, in
cases 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 onus of proving that the plaintiff had
actually meant to execute a patta, and entered into the transaction fully aware
of it and with full knowledge of its contents and significance is upon the
defendants.
The object of the rule of law, which is
applicable to pardanashin ladies, is to protect the weak and helpless, and
consequently such a rule should not be restricted to that class only, but
should apply to the case of a poor woman who is equally ignorant and illiterate
though not a pardanashin in the strict sense of the term.
Simply because the sub—Registrar made certain
enquiries from and asked her whether she had executed the particular document,
and that she said that she affixed thumb impression on it, would not lead to
the conclusion that the plaintiff had the idea of the nature of the document
she executed.
Ayana Dasi
Vs. Arena Bala Dasi.(1 960) 12 1. DLR 603.
In the case of disposition by a pardanashin
lady the onus lies on the person relying on the disposition to establish that
the maker of the disposition comprehended it thoroughly and made it
deliberately and of her own free will. To discharge this onus, it is not
sufficient to show that the allegations made by the person attacking the
disposition are untrue.
Mere proof that execution had been admitted
by an illiterate pardanashin lady is not enough. The real point is that the
disposition made must be substantially understood and must really be the menial
act as its execution is the physical act of the maker.
Abdul Motlab
Biswas Vs Matulla (1954) 6 DLR 202.
Pardanashin
Lady:
—Onus of proof of a document executed by her.
In a case for setting aside a kabala in which the executant is Pardanashin lady
the onus heavily lays on the person who claims interest through the disputed
Kabala to prove that it was duly executed by the cxecutant.
Tamijur
Rahaman Vs. Md. Altafur Rahman (1969) 21 DLR 977.
Pardanshin
woman—Agreement with— When voidable.
When the respondent (pardanashin woman)
signed the document while under the appellant’s influence and protection and
without independent advice when she was suffering great distress and was unfit
to understand how adversely her rights were affected by it, and that in fact
she did not understand its meaning and legal consequences. Held: that the
agreement embodied in the document is voidabe:
[(Lord
Normand) Parikh Atmaram Maneklal vs. Bai Hira : PLD 1948 P C 40]
Pardanashin
woman—Transfer of property by—Transferee must prove affirmatively that transfer
was result of free will of Pardanashin—Independent advice— Opportunity for,
necessary in case transferee stands in position of confidence.
It is for the person, who seeks to hold a
pardanashin, ignorant and illiterate woman to the terms of the deed,
transferring the property to her disadvantage to prove affirmatively that not
only the document was read over and explained to her before she put her
thumb—impression to it, but that it was the result of her own free will, after
she had thoroughly comprehended the terms of the document. If a person deriving
benefit under the deed stands towards her in fiduciary character or in some
relation of personal confidence, then the Court is to act with greater caution
and in ordinary circumstances must presume confidence put and influence
exerted. It is for him to bring evidence on the record to show that the lady
executing the document was free from all undue influence, and when she executed
it, she understood the terms of it quite intelligently and nothing was
concealed from her. Generally it is prudent, although the rule is not rigid or
inelastic that a woman of the description mentioned above before she disposes
of her property to her disadvantage, is given an opportunity to seek independent
advice given by a person, who has no interest in the party acting or in the
property proposed to be disposed of. It, however, all depends upon the
circumstances of the individual case, whether such an advice was necessary or
not, and what kind of advice was needed. In cases where the transfer is
gratuitous and in favor of a person, who stands towards a woman in fiduciary
character or in some relation of personal confidence, the presumption will be
still strong against the validity of the deed. [In the present case daughters
gave up their rights in the inheritance from their father in favor of their
brothers eight days after the death of their father. One of the daughters
repudiated the deed of relinquishment within a few days of its execution]:
(Muhammad
Ibrahim J.C. and Muhammad Shafi, J.)
Muhammad Isa
Khan vs. Muhammad Hussain Khan: PLD 1954 Pesh. 39.