K. Subba Rao JUDGMENT
K. Subba Rao, J.
1. This appeal by special leave is preferred against the judgment of a single Judge of the Patna High Court. The facts that gave rise to this appeal may be briefly stated. To appreciate the findings of the various courts and the contentions of the parties, the following genealogy will be useful.
2. The case of the plaintiff, who is the widow of Rameshwar Rai, is that her husband and Jangbahadur, defendant 1, effected a partition of the family property in or about 1924, that after the partition he was in exclusive possession of the property that fell to his share, that he died in the year 1930, that thereafter she and her mother-in-law continued to be in possession of the said property, that her mother-in-law died in 1938, that the first defendant asked her and her mother-in-law to execute a power of attorney in his favour, that they, being pardhanashin ladies, executed a document in his favour on August 24, 1935, believing it to be a power of attorney, that subsequently the came to know that it was a maintenance deed continuing false recitals to the effect that there was no separation and that the property was joint family property. They also alleged in the plaint that the deed in question was never read out to them, that the scribe and the attesting witnesses were partisans of the first defendant. It was also alleged that the document was always in the custody of the firs defendant, that the plaintiff and her mother-in-law, till the latter's death, were getting the income from the property as they were getting before the execution of the said documents and that they came to know of the fraud only in 1355 fasli, when the first defendant began to interfere with the possession and occupation of the property by the plaintiff and disclosed to several people that she had only as right to maintenance and thereafter when she got the document read over to her and discovered the fraud. With those allegations, among others, the plaintiff filed a suit in the Court of the Munsif, Muzaffarpur, for the following reliefs :
"On a consideration of the aforesaid facts and also on adjudicating the plaintiff's title and the absence of title of the defendants, it may be adjudged by the court that the deed of agreement for maintenance is altogether fraudulent and not binding upon the plaintiff."
3. The relief claimed is rather involved, but in sub-stances it is a relief for a declaration of the plaintiff's title to the suit property and for a declaration that the maintenance deed, having been executed by fraud, was not binding on her. The defendant denied the allegations contained in the plaint and alleged that the deed of maintenance was read over and explained to the plaintiff and her mother-in-law and that one Babu Ramnath Singh, brother of the plaintiff, was present at the time of the execution and affixed his signature on behalf of the plaintiff. He denied that he had committed any fraud. On the pleadings the following issues, among others, were framed :
Issue No. 3 - "Is the allegation of separation between Rameshwar Rai and defendant No. 1 in the month of Asardh 1334 Fs. (19-7) correct ?"
4. Issue No. 4 - "Is the document dated 24-8-1935 legal and valid ? Was the same read over to the plaintiff and the plaintiff executed it with the full knowledge of the contents ?"
5. Issue No. 5 - "Are the plaintiffs entitled to the reliefs claimed ?"
6. It will be seen from the issues that the burden of proof to establish separation was placed on the plaintiff and that to prove that the document was read over to ........