Judgement Appeal (No. 92 of 1934) from a judgment and decree of the Chief Court of Oudh (April 27, 1933) reversing a judgment and decree of the Subordinate Judge of Kheri (September 7, 1931). The action out of which this appeal arose was brought by the appellants to recover principal and interest due under a mortgage deed in respect of certain property owned by the respondent, executed on September 8, 1924, by the respondent and her late husband in favour of the appellants to secure repayment of Rs. 12,500. The respondent was an illiterate purdanashin lady, and when she executed the deed by putting her thumb mark on it she was in a room behind a curtain, her husband and two attesting witnesses who also signed the document being on the other side of the curtain. The questions were (1.) Whether the appellants had given sufficient proof of due attestation to satisfy the terms of s. 3 of the Transfer of Property Act, 1882, which, as amended by Act XXVII. of 1926, provides u and each of whom has signed the instrument in the presence of the executant "; (2.) whether the appellants had given sufficient proof in the case of an illiterate purdanashin lady that she thoroughly comprehended and deliberately of her own free will carried out the transaction. The facts appear from the judgment of the Judicial Committee. The Subordinate Judge was of opinion that the respondent had intelligently executed the deed in the presence of attesting witnesses, and he passed a decree in favour of the appellants. On appeal the Chief Court of Oudh held first, that since the respondent could not see the attesting witnesses and was not shown to have had her attention called to the fact that they were signing the bond as attesting witnesses, they could not be said to have signed the deed in her presence, and the bond was not therefore attested; and, secondly, they were not satisfied that intelligent execution of the bond by her had been established. The appeal is reported at ( 1934) I. L. R. 9 Luck. 12. 1936. April 23, 24. Dunne K.C. and Abdul Majid for the appellants. The execution was an intelligent execution the respondent knew what she was doing. The appeal is reported at ( 1934) I. L. R. 9 Luck. 12. 1936. April 23, 24. Dunne K.C. and Abdul Majid for the appellants. The execution was an intelligent execution the respondent knew what she was doing. It was only by saying that a "thin" curtain meant a "thick" one that the Chief Court could find that she did not see the attestation through the curtain, and that the attestation was not made in her presence. The only question is that which was raised in the Chief Court, whether the attestation was in the presence of the lady. Sect. 3 of the Transfer of Property Act, 1882, as amended, does not say that she has to see the signatures of the attesting witnesses being put on it only means that she has to be present there, and if she chooses to see the signatures she may. On the point of her taking independent advice, the particular circumstances of the case must be taken into account. She was on affectionate terms with her husband; the property had been given to her by him; she knew of his financial position, and she also required money herself. This was a transaction of such a nature that it is not necessary to prove independent advice, since she knew the exact nature of it and entered into it willingly. The Registrar, who was independent, brought the nature of the transaction to her notice. "Independent advice" does not mean advice that will stop her entering into the transaction it means only the explaining to her and making her understand the nature of the transaction. She is free to enter into the transaction. [Reference was made to Farid-un-Nisa v. Mukhtar Ahmad (( 1925) L. R. 52 I. A. 342.)]. Majid followed, and referred to Sheoprasan Singh v. Munshi Narsingh Sahay. (( 1932) 36 Cal. W. N. 597.) De Gruyther K.C. and Pringle for the first respondent. There are three points (a) The burden of proof is on the mortgagee to show necessity; (b) whether the mortgage has been attested within the meaning of the Transfer of Property Act; and (c) whether it was explained to the executant and thoroughly understood by her. [With regard to (a) reference was made to Lala Amarnath Sah v. Rami Achan Kuar. [With regard to (a) reference was made to Lala Amarnath Sah v. Rami Achan Kuar. (( 1892) L. R. 19 I. A. 196.)] The appellants must prove due attestation even though execution is not denied. The words " each of whom has signed the instrument in the presence of the executant," which appear in s. 3 of the Transfer of Property Act, have been construed in England under the Wills Act, and they were introduced into the Indian Act with the knowledge that they were definitely construed in England. [Reference was made to Jarman on Wills, 6th ed., vol. II., IX. of appx. B.] In India the two witnesses need not be present at the same time in England they must be. [Reference was made to the Transfer of Property Act, 1882, s. 3, as amended by Act XXVII. of 1926; the Indian Evidence Act, I. of 1872, s. 70; Shamu Patter v. Abdul Kadir Ravuthan (( 1912) L. R. 39 I. A. 218.), Hira Bibi v. Ram Hari Lal (( 1925) L. R. 52 I. A. 362.), Norton v. Bazett (( 1856) 164 E. R. 569.), In the Goods of Killick (( 1864) 164 E. R. 1399.), Newton and Thomas v. Clarke (( 1839) 163 E. R. 425.), Jenner v. Ffinch (( 1879) 5 P. I). 106.), and In the Goods of Edward Colman (( 1842) 163 E. R. 674.).] The question here is not only the question of the purdah; it must be proved that the respondent from where she was sitting could have seen the witnesses when they signed. There is nothing to show that the respondent was behind the curtain when the witnesses signed. [Reference was made to Brown v. Skirrow ([ 1902] P. 3.).] " In the presence of " means in the actual visual presence; the executant must be in such a position as actually to see the witnesses sign. If there were purdah through which the respondent could not see, that would cover my case. If there were no purdah it would have to be proved that she was in a position to see. The transaction was not explained to the respondent. The burden is on the appellants to prove that it was explained to her and that she understood it. She must thoroughly comprehend it and execute it of her own free will. If there were no purdah it would have to be proved that she was in a position to see. The transaction was not explained to the respondent. The burden is on the appellants to prove that it was explained to her and that she understood it. She must thoroughly comprehend it and execute it of her own free will. [Reference was made to Sajjad Husain v. Wazir Ali Khan (( 1912) L. R. 39 I. A. 156.), Annoda Mohini Roy Chowdhry v. Bhuban Mohini Debt (( 1901) L. R. 28 I. A. 71.), Farid-un-Nisa v. Mukhtar Ahmad (( 1925) L. R. 52 I. A. 342), Tara Kumari V. Chandra Mauleshwar Prasad Singh (( 1931) L. R. 58 I. A. 450.), and Kali Bakhsh Singh v. Ram Gopal Singh (( 1913) L. R. 41 I. A. 23.).] Pringle followed. As soon as it was established that there was purdah between the respondent and the attestors it beame incumbent on the appellants to prove that she could see the attestors. Dunne K.C. was not called upon to reply on the question of attestation. The point about independent advice is that the purdanashin should know the nature of the transaction she is entering into, not that she should be advised or warned not to enter into it. Here there can be no doubt that she did know the nature of the transaction. It was admitted that the husband used no undue influence. May 15. The judgment of their Lordships was delivered by SIR GEORGE RANKIN. The plaintiffs appeal from a decree of the Chief Court of Oudh, dated April 27, 1933, which set aside a preliminary mortgage decree granted to them by the Subordinate Judge of Kheri, dated September 7, 1931. The suit was brought on February 24, 1931, to enforce the terms of a registered mortgage deed, dated September 8, 1924. Defendant No. 1, Musammat Musharraf Begam, was the only contesting defendant, and will be referred to herein as the defendant. She was described in the plaint as being of about 40 years of age. The date of her marriage does not appear, but it appears that at the time of her marriage her husband, Mohammad Abul Bashir Khan, agreed to pay her dower of Rs.50,000. She was described in the plaint as being of about 40 years of age. The date of her marriage does not appear, but it appears that at the time of her marriage her husband, Mohammad Abul Bashir Khan, agreed to pay her dower of Rs.50,000. By deed dated February 9, 1920, executed at a time when the defendants husband had incurred a certain number of debts, though it is not shown that he was then insolvent, he transferred to her five villages in lieu of the promised dower. The villages, even if allowance be made for encumbrances subsisting thereon, appear to have been well worth the sum of Rs.50,000. The mortgage sued upon is dated September 8, 1924, and covers one only of the five villages—namely, Sheopuri. It is for the sum of Rs. 12,500, Rs.8500 being received from the plaintiff Kundan Lal and Rs.4000 from the plaintiff Ram Charan. In all some Rs.550 were paid in cash at the time of execution of the mortgage. Rs.3332 went in satisfaction of a promissory note executed by the defendant and her husband in 1928. Rs.2500 went in pay ment of Government revenue of this sum approximately Rs.2000 was due in respect of Government revenue upon the defendants property. It is not necessary for the present purpose that their Lordships should make a more detailed reference to the particulars of consideration set forth at the end of the deed. The deed itself recites the deed of gift dated February 9, 1920, that the husband is liable for the amounts therein specified, and has not sufficient property left with him to pay the same, "and besides this the executant No. 1 also (that is the defendant) stands in need of Rs.3055-6. for the payment of Government revenue and to meet her other necessary expenses, and the executant No. 1 wants to free the executant No. 2 (that is the husband) from his debt." The terms of the loan are that the money should be repaid within six months with interest at 1 per cent, per month, and that if not paid on the expiry of six months the interest should be computed with six-monthly rests. It is stated that there was already a mortgage on the property for Rs.14,000. It is stated that there was already a mortgage on the property for Rs.14,000. The deed concludes " Executant No. 1 has fully understood the contents of the mortgage deed through her husband and has taken legal advice also for it. Executant No. 1 has in no way been deceived in executing this deed." The scribe Behari Lal signed the deed as such. He was dead at the date of the suit. Mohammad Abdul Bashir Khan signed his name and put his thumb mark. The defendant put her thumb mark. The witnesses to the execution by both were Pandit Deo Nath and Badri Mahto, both of whom signed their names as witnesses. The document purports to have been registered on the same date, namely, September 8, 1924, at the residence of the defendant and her husband in village Behtia by one Niamat Ullah, Sub-Registrar, Lakhimpur. The Sub-Registrar has noted " The conditions laid down in this deed have been read out and fully explained to the lady executant." There is also an endorsement to the effect that execution and completion of the deed was admitted in the case of the lady that she herself " admitted it from her own mouth in a loud voice from behind the screen in the dalan facing east inside her house and realised Rs.32.13.3 from Kundan Lal, mortgagee, and Rs.512.7.9 from Ram Charan, mortgagee, in cash before me." It is stated that the lady was identified to the Sub-Registrar by Ali Mohammad Khan and Sheikh Ibadullah, who are described as nephew and tutor respectively. The endorsement is signed by the husband and the defendants name is put thereto by the pen of Qadar Ali together with her thumb impression. Ali Mohammad Khan and Sheikh Ibadullah have also affixed their signatures. The defendant put the plaintiffs to proof of the mortgage deed, and the two questions which arise for consideration upon this appeal are (1.) whether the plaintiffs have given sufficient proof of due attestation to satisfy the terms of s. 3 of the Transfer of Property Act " and each of whom has signed the instrument in the presence of the executant; " (2.) whether the plaintiffs have given sufficient proof in the case of an illiterate purdanashin lady that she thoroughly comprehended and deliberately of her own free will carried out the transaction. By her written statement the defendant admitted the execution of the deed by herself, but pleaded that she was incapable of understanding any transaction, and that she affixed her thumb impression on the deed without under-] standing it, and without obtaining independent advice, at the instance of her husband, who was actuated with selfish motives, and in the absence of witnesses. She made the case that her husband had represented to her that the deed was merely to raise money to the extent of some Rs.1995 which was necessary to pay the Government revenue upon her own property. She pleaded that she had no knowledge that any other consideration money was being received beyond Rs.1995-12. Accordingly, issue No. 1 was framed as follows " Did the defendant No. 1 execute the mortgage deed in suit after understanding its import and its effect on her interest with independent advice and in presence of the attesting witnesses ? " The defendant was examined on commission and gave her evidence on September 2, 1931, after the plaintiffs witnesses had been heard by the learned trial judge. Her case was, and her evidence was, that her husband told her that it was necessary to raise a loan of about Rs.2000 to pay Government revenue on her property; that in the zenana of their house he came to her with the deed in suit, said that he had managed to raise a loan, and took her thumb mark on the document there and then, no one being present except themselves and some domestic servants. She admitted that the document was registered, and said that she affixed her thumb mark on that occasion inside the purdah, but denied that the document was at any time read over to her by any one. This case made by the defendant sufficiently explains the concluding words of issue No. 1 above set forth. It was, however, obligatory upon the plaintiffs to give due proof of the mortgage deed, and they claim to have done so by the evidence of the two attesting witnesses, Deonath and Badri, who have been believed by both the Courts in India. It was, however, obligatory upon the plaintiffs to give due proof of the mortgage deed, and they claim to have done so by the evidence of the two attesting witnesses, Deonath and Badri, who have been believed by both the Courts in India. They were called and deposed to the following effect That on September 8, 1924, the defendant was in a room from which opened out a courtyard; that the room had what is called a tidwari, namely three door openings or arches leading to the courtyard; that a curtain was slung across one of them at least, namely the one behind which the defendant was. That her husband, the two witnesses, the two plaintiffs, Fida Ali, agent for the defendant and for her husband, Ibadullah and Ali Mohammad were present, being seated on a takhat or platform placed about 4 ½ feet in front of the curtain. That the scribe Behari read out the deed, and that the defendant then asked Fida Ali if that was the very deed a draft of which he had got prepared by Mr. Samiullah of Lakhimpur; that Fida Ali said "Yes,” and that the defendant said she accepted what was written and put her hand out of the curtain at the request of Ali Mohammad and made her thumb mark on the deed in sight of the witnesses. The evidence of Deonath and Badri is that the defendants husband then signed, and that thereupon they themselves signed as attesting witnesses. Both witnesses say that this was done in the presence of the defendant and her husband. Their evidence is that the Sub-Registrar who was in attendance was then brought forward; that he asked the defendant if she understood the purport of the deed, giving some explanation to the effect that Sheopuri was being hypothecated for Rs. 12,500 repayable in six months with 1 per cent, per mensem interest; that he read out the deed to her and asked her if she accepted the terms; that she said yes. The cash consideration of Rs.550 was paid in the presence of the Sub-Registrar by being given to Fida Ali, who gave them to the defendant by placing them inside the room where she was. Before the trial judge no" exception appears to have been taken to this evidence so far as regards the question of due attestation. The cash consideration of Rs.550 was paid in the presence of the Sub-Registrar by being given to Fida Ali, who gave them to the defendant by placing them inside the room where she was. Before the trial judge no" exception appears to have been taken to this evidence so far as regards the question of due attestation. The contention that even if the plaintiffs witnesses be believed the signature of the witnesses was not put in the presence of the defendant by reason of the curtain or purdah was not raised in the trial Court at all. The plaintiffs witnesses were not cross-examined to show that by reason of the purdah the defendant had no opportunity of seeing and noticing the attestation being carried out. The grounds of appeal to the Chief Court contain no such suggestion. Ground 4 is somewhat inconsistent with any such contention, as it says that the lower Court should have found that the executant is not liable for a larger sum than 1 Rs. 1995-12 under the deed in suit. The learned judges of the Chief Court, howver, while saying that they saw no reason to reject the evidence of the plaintiffs witnesses Deonath and Badri, took the view that the curtain, which was described in the evidence as thin, was really thick, and that, as it was not shown that the defendant had her atten tion called to the fact that Deonath and Badri were signing the deed as witnesses, they could not be held to have signed the deed in her presence. Their Lordships are of opinion that this view cannot be sustained. Having regard to what was put to the plaintiffs witnesses in cross-examination it was not reasonable that any such contention should be raised before the Appellate Court for the first time. Their Lordships are of opinion that this view cannot be sustained. Having regard to what was put to the plaintiffs witnesses in cross-examination it was not reasonable that any such contention should be raised before the Appellate Court for the first time. No question whatever bearing upon this point was put to Deonath, but in Badris cross-examination the following passage appears " The curtain was very thin and the outsiders could not see the person inside." The learned judge, who took the evidence down in English, though it was given by the witnesses in the vernacular, refers in his judgment to this curtain, saying " Ali Mohammad went inside the room in which defendant No. 1 was sitting behind a thin curtain." The learned judges of the Chief Court had no substantial ground for supposing that the word " thin " was a mistake for " thick," nor was any reasonable inquiry directed at the trial to the question whether a person inside looking against the light could not see through the curtain. The whole object of the method employed in the staging of this ceremony was that the defendant, though her face should not be seen, should be made aware of what was being done. It is only reasonable to treat the evidence given by the plaintiffs as sufficient evidence for this purpose. A number of cases have been cited to their Lordships from the English reports where a similar question has been considered under the English Wills Act of 1837. Whether a witness signs his name in the presence of the executant is in each case a question requiring full consideration of the whole circumstances. Their Lordships think that the case of Newton and Thomas v. Clarke (( 1839) 2 Curteis 320.), where the statute was held to have been satisfied, is as near to the present case as any of the English cases. It is clear enough that the defendant, if she had been minded to see the witnesses sign, could have done so even if she did not actually see them through the curtain. On this point, therefore, the appeal succeeds. There remains, however, the important and difficult question whether the evidence given by the plaintiffs in this case was sufficient to show in the case of an illiterate purdanashin woman that she gave an intelligent and free consent to the mortgage deed. On this point, therefore, the appeal succeeds. There remains, however, the important and difficult question whether the evidence given by the plaintiffs in this case was sufficient to show in the case of an illiterate purdanashin woman that she gave an intelligent and free consent to the mortgage deed. The learned Subordinate Judge was of opinion upon a consideration of the defendants evidence on commission that she was, though illiterate, of average intelligence, and that the language of the deed was quite simple and intelligible to a lady of the type of the defendant. He was of opinion that the deed was read out and explained to her sufficiently, and that she was sufficiently apprised of the fact that the bulk of the money borrowed was for her husbands debts. Fida Ali, no doubt, was her husbands agent as well as her own. The husband having died on April 7, 1927, Fida Ali continued as the defendants agent. The learned Subordinate Judge was impressed with the fact that Fida Ali was not called at the trial as a witness. In the circumstances he did not think that it was necessary for the plaintiffs to produce evidence that the defendant had independent advice, that is to say advice independent of her husband; and it is abundantly clear that she had advice independent of the mortgagees. The learned judges of the Chief Court, however, took the view that it was unlikely that the respondent would be willing to mortgage her own property for her husbands debt, although she and her husband were on affectionate terms. They did not think the transaction was such as she could have intelligently entered into. Her question whether the deed conformed to the draft settled by the lawyer of Lakhimpur was taken by them to show that when the document was read out to her by the scribe she was not applying her mind to its contents. In the result, they refused to find that there was intelligent execution by her of the mortgage deed in suit. Both Courts agree, however, in rejecting the defendants story that she executed the deed in the zenana in the absence of any witnesses from outside, and upon misrepresentation by the husband to the effect that it was a deed for Rs.2000 only. Both Courts agree, however, in rejecting the defendants story that she executed the deed in the zenana in the absence of any witnesses from outside, and upon misrepresentation by the husband to the effect that it was a deed for Rs.2000 only. Now there was certainly a burden upon the plaintiffs to establish that the effect of the deed was brought home to the mind of the defendant, and the mere fact that the defendants story of deception by her husband has to be rejected does not operate to discharge this burden. Nor is it discharged by mere proof of execution of the deed by her. On the other hand, their Lordships cannot doubt upon the evidence that the lady was well aware that she was executing a mortgage deed; that she was executing it for a sum of Rs. 12,500; and that as to the bulk of this sum she was doing so in order to discharge her husbands debts and not her own. The nature of the transaction, though in part altruistic, cannot be described as one which she could not intelligently have entered into, as the Chief Court thought. Having received a large property from her husband she may very well have thought that in addition to borrowing money which was required on her own account she would come to her husbands help to the extent of some seven or eight thousand rupees. The terms upon which she and her husband lived make it quite likely that this should have been her settled determination and that the sacrifice, such as it was, was a willing sacrifice on her part. Lord Sumner in giving the judgment of this Board in Farid-un-Nisa v. Mukhtar Ahmad (( 1925) L. R. 52 I. A. 342.) said (Ibid. 350.) "Independent legal advice is not in itself essential Kali Bakhsh Singhs case (( 1913) L. R. 41 I. A. 23.). After all, advice, if given, might have been bad advice, or the settler might have insisted on disregarding it. The real point is, that the disposition made must be substantially understood and must really be the mental act, as its execution is the physical act, of the person who makes it Wajid Khans case (( 1891) L. R. 18 I. A. 144,148.); Sunitabala Debts case (( 1919) L. R. 46 1. A. 272, 278.). The real point is, that the disposition made must be substantially understood and must really be the mental act, as its execution is the physical act, of the person who makes it Wajid Khans case (( 1891) L. R. 18 I. A. 144,148.); Sunitabala Debts case (( 1919) L. R. 46 1. A. 272, 278.). The appellant clearly had no such advice, nor is it contended that she had, If, however, the settlors freedom and comprehension can be otherwise established, or if, as is the respondents case here, the scheme and substance of the deed were themselves originally and clearly conceived and desired by the settlor, and were then substantially embodied in the deed, there would be nothing further to be gained by independent advice. If the settlor really understands and means to make the transfer, it is not required that some one should have tried to persuade her to the contrary. Again, the question arises how the state of the settlors mind is to be proved. That the parties to prove it are the parties who set up and rely on the deed is clear. 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 circumstances which establish adoption of it with full knowledge and comprehension Sudisht Lal’s case (( 1881) L. R. 8 I. A. 39, 43.); Shambati Koeris case (( 1902) L. R. 29 I. A. 127, 131.); Sajjad Husains case (( 1912) L. R. 39 I. A. 150.)." As the defendants evidence was given on commission their Lordships are in no worse position than the Chief Court in coming to a conclusion whether the view taken by the trial judge of the defendants capacity to understand business was correct. They think the learned trial judge came to a very just estimate of the ladys ability and intelligence. They see no reason to doubt that the Sub-Registrar discharged his duty to the best of his ability and satisfied himself that the ladys free consent went with her act in executing the deed. The law is not to be so interpreted or applied as to make it impossible for a purdanashin to give security for her husbands benefit this would be to convert a principle of protection into a disability. The law is not to be so interpreted or applied as to make it impossible for a purdanashin to give security for her husbands benefit this would be to convert a principle of protection into a disability. It is clear enough that before the trial Court learned counsel for the defendant made no case of undue influence by the husband. It is noticeable that, apart from the untrue story of deception by the husband as to the amount of the loan which was being taken, there is nothing in the defendants evidence to indicate that unfair insistence, threats, overbearing conduct or other undue influence was used or attempted by him to obtain her signature to this deed. The Chief Court were not satisfied that her intelligent assent went with her execution of the deed. Their Lordships think, however, that the proof given was sufficient, and that the learned Subordinate Judge took a correct view both of the law and of the facts. Their Lordships will humbly advise His Majesty that the appeal should be allowed, the decree of the Chief Court set aside, and the decree of the Subordinate Judge of Kheri restored subject to the following modifications, namely that in lieu of March 7, 1932, as the date when the defendants are to pay into Court the sum of Rs.31,540-3-9, September 7, 1936, should be substituted, and that in lieu of that sum the amount due on September 7, 1936, for principal and interest according to the mortgage deed together with the costs awarded by this judgment be inserted in the decree by the Chief Court. The defendant No. 1 must pay the plaintiffs costs in the Chief Court and of this appeal.