Contracts With Pardanashin Women

National University of Study and Research in Law, Ranchi

Research Paper Synopsis Contracts-1 Contracts with “Pardanashin Women”- Section 16 (Undue Influence)

Submitted to:

Submitted by:

Mr. Mrityunjay Mayank

Rupali Goyal Semester 1 Section B Roll No. 709

Contracts with “Pardanashin Women”- Section 16 (Undue Influence)

The term ‘Pardanashin’ means screened from the view, placed behind the screen, veiled. It refers to a woman who observes the rule of seclusion. A Contract with pardanashin women is presumed to have been induced by undue influence1. She can avoid the contract unless the other party can show that it was her “intelligent and voluntary act”2. The ground on which protection is given to a pardanashin woman is that she can be easily influenced and is very likely to be over-reached in her dealings. It is not merely by reason of the purda itself that the law throws its protection around a pardanashin woman; rather it is by reason of those disabilities which arise out of seclusion which the pardanashin women suffer, arising from causes such as old age, infirmity, illiteracy, mental deficiency, inexperience and dependence upon others3. The principle upon which the law accords protection to pardanashin women is founded on equity and good conscience4. But there is no reason why a rule which is applicable on pardanashin ladies on the ground of ignorance and illiteracy should be restricted to that class only and should not

1 Section 16. "Undue influence" defined as (1) A contract is said to be induced by "under influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. (2) In particular and without prejudice to the generally of the foregoing principle, a person is deemed to be in a position to dominate the will of another (a) where he hold a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress. (3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other. Nothing in the sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872)

2 Bellachi v Pakeeran (2009) 12 SCC 95 : (2009) 4 SCC (Civ) 640, burden of proving genuineness of the document is on the party. But in the case of registered instruments there is equally the presumption that it was executed in accordance with the law. 3 Ashok Kumar v Gaon Sabha, AIR 1981 All 222. 4 Tara Kumari v Chandra Mauleshwar Prasad Singh, (1931) 58 IA 450, AIR 1931 PC 303, 34 Bom LR 222, 134 IC 1076.

be apply to the cases of women who is equally ignorant and illiterate and is not pardanashin simply because she does not belong to that caste5.

Where ignorance and illiteracy are proved exposing the woman concerned to the danger and risk of an unfair deal, it would be a perversion of the rule to deny in such case the protection, despite the helplessness of her state, merely on the ground that she is not pardanashin lady6. In Hodges v. Delhi and London Bank Ltd.7, it was held that ‘it must depend on each case on the character and position of the individual woman whether those who deal with her are or not bound to take special precaution that her actions shall be intelligent and voluntary and to prove that it was not so in case of dispute.” The protection when given to such a woman is by putting the burden of proof upon the person transacting with such woman to show the transaction was effected by the free will of such a woman, that she has taken independent advice8; or that the said documents were executed by her after clearly understanding the nature of transaction9. It should be established that it was not her physical act but also her mental act10. The burden can be established not only by proving that the document was explained to her and that she understood it but also by other evidence, direct and circumstantial.11 It is not sufficient to show that a document executed by a pardanashin women was read out to her; it is must further be shown that it was explained to her12, or that its conditions and effect13; and that the explanation included all material points as well as the general nature of 5Chaitya v Bhalku 51 CLJ 465; AIR 930 Cal 591; 128 IC 108 6 Sonia Parshini v. Sheikh Moula Baksha, AIR 1955 Cal 17 ; Madna Vati v. Raghunath Singh, AIR 1976 HP 41. 7 Hodges v. Delhi and London Bank Ltd. (1899-1900) 27 IA 168, 175-76. 8 Hussain Bai v. Zohra Bai, AIR 1960 MP 60; Rabiya v. Ali Hussain, AIR 2009 Uttrakhand 37. 9 Sonia Parshini v. Sheikh Moula Baksha, AIR 1955 Cal 17 10 Amir Alam v. Bibi Salma, AIR 1952 Pat 19; Kairum Bi v. Mariam Bi, AIR 1960 Mad 447. 11 Kharbuja Kuer v. Jangbahadur Rai, [1963] 1 SCR 456, AIR 1963 SC 120 at 1206; followed in Mitti Bewa v. Daitari Nayak, AIR 1982 Ori 174. 12Kuma Die v. Md Abdul Latif, AIR 1994 Ori 111.

the transaction14. The reason is that the ordinary presumption that a person understands to which he has affixed his name does not apply in the case of such a woman15. In the case of a pardanashin woman, apart from other considerations applicable, if the document executed in not in the mother tongue of the executant, the law requires further that she understood the document and not merely heard its contents16. When a document is executed by a pardanashin lady the court has to be satisfied that: (i) She executed it after all understanding (ii) She had full knowledge of its nature and effects (iii) She had independent and disinterested advice. The court has to provide protection to pardanashin women during the contractual binding as law presumes it to be induced by “undue influence” on the ground that she is vulnerable and holds a submissive position in the society.

13 Shambati Koeri v. Jago Bibi, (1902) 29 IA 127, (1902) 29 Cal 749. 14 S K Abdul Mannan v. Mutwalli of Janebali, AIR 1956 Cal 584. 15Mariam Bibi v. Sakina, (1892) 14 All 8. 16 Hussain Bai v. Zohra Bai, AIR 1960 MP 60, (it appears that the executant’s language was not Hindi in which the document was written).