Orissa High Court
Musi Dei vs Labanya Bewa And Anr. on 16 April, 1986
Equivalent citations: AIR1986ORI242, 1986(I)OLR598, AIR 1986 ORISSA 242, (1986) 1 ORISSA LR 598
JUDGMENT Behera, J.
1. Challenge in this appeal is to the findings recorded by the trial court holding that the two deeds including Ext. A executed in favour of the appellant who had figured in the court below as the defendant 1, the other defendant being Akhi Dei who did not put in her written statement in the trial court and had not examined herself either, purported to be deeds of gift in respect of the entire properties of the plaintiff Labanya Bewa, the respondent 1 herein, including the homestead land, had been executed fraudulently and by misrepresentation giving the impression to the executant that she was to execute a power-of-attorney in favour of her two sons, the husbands of the donees-defendants, to look after the properties owing to the old age and illness of Labanya who had instituted the suit for a declaration that the defendants had not acquired any right or title over the properties covered by the two deeds registered on March 20, 1968, as the deeds were illegal, fraudulent, invalid and inoperative in law and not binding on Labanya. The case of the defendant 1 Musi Dei was that knowing fully well the contents of the two documents and with full knowledge, Labanya had gifted away her properties executing the two gift deeds, one in her favour and the other in favour of her other daughter-in-law who had figured as the defendant 2 and there had been no fraud or misrepresentation practised on the executant who had earlier got her lands apportioned in favour of her two sons -- Balaram, husband of the defendant 1 and Banshidhar, husband of the defendant 2 -- who had also married earlier another lady and these transfer had been effected with the consent of Nira, the married daughter of Labanya, who had also signified her consent in the two deeds of gift by putting her left thumb impressions. The pleadings of the parties have been set out in details in the impugned judgment.
2. The plaintiff and the defendant 1 went to trial and examined witnesses on their behalf. The case of the defendant 1 was that at the instance of Banshidhar. the husband of the defendant 2, Labanya had instituted a false and frivolous suit. Reliance was placed by the contesting parties on oral and documentary evidence.
3. On a consideration of the evidence, the learned Subordinate Judge has accepted the case of Labanya after keeping on record the well-settled principles of law relating to execution of documents by pardahnasin and/or illiterate ladies. The learned Subordinate Judge has held that the executant was not a pardahnasin lady, but she was illiterate and had not been able to read manuscripts although she was able to sign her name.
4. The trial court has reached the conclusion that on the facts and in the circumstances of the case, the deeds of gift had not voluntarily been executed by Labanya and had fraudulently been obtained from her. The trial court has, however, held that the evidence would lend support to the claim of the defendant No. 1 that she had been in possession of the properties separately and Labanya was not in possession thereof and therefore, the relief for permanent injunction could not be granted.
5. Appearing on behalf of the sole appellant Musi Dei (defendant 1), Mr. Ram has challenged the findings recorded by the learned Subordinate Judge against the appellant as unfounded and has submitted that regard being had to the literacy of the plaintiff-respondent 1 and the fact that she had been doing business independently for a long period and she was neither a pardahnasin nor illiterate lady, the principles applicable to the execution of documents by such ladies were not to be applied, as has been done by the learned Subordinate Judge. It has also been submitted that the evidence adduced from the side of the appellant would clearly show that fully understanding the nature and contents of the two documents which had not only been read over and explained to her, but had also been perused by her personally, the respondent 1 had gone back home as it was late for registration on the day of execution, came two days thereafter, appeared before the Sub-Registrar and after she was identified, she admitted the contents of the documents after which the documents were registered on that day whereafter in mutation proceedings, the name of the appellant has been mutated in the revenue and municipal records after inviting objections and without any objection having been raised by the respondent 1 and as found by the learned Subordinate Judge, the appellant was in possession of the lands which had been given to her in the gift deed and therefore, the learned Subordinate Judge has wrongly held that the documents executed by the respondent No. 1 were invalid and inoperative and were not to be acted upon. The learned counsel for the respondent 1 has urged the same grounds taken by the learned Subordinate Judge in the body of the judgment while reaching his conclusion in favour of the respondent 1 and has contended that the findings well-based on the evidence on record are not to be dislodged.
6. It would be seen from the evidence of the respondent 1 herself, who was aged about sixty-four years at the time of execution of the documents in the year 1968, as her age at the time of her deposition in 1974 had been estimated by the court to be about seventy years, that she had two sons, namely, Balaram, the husband of the appellant and Banshidhar and a daughter Nira who had been residing in her husband's house. She had taken her education in the 'Chatasal' and knew how to read books though due to old age, she had not been reading books. According to her, she was unable to read manuscripts and she had not been reading for about 5 to 8 years prior to her deposition in the court. She has asserted that she had not intended to gift away the suit lands in favour of the defendants nor executed any deed of gift.
7. It is important to keep in mind that although fraud and misrepresentation were sought to be established to render the documents invalid, the particulars thereof had not been mentioned in the plaint, as required under Order 6. Rule 4 of the C.P.C. and vague averments had been made in the plaint. It had been stated therein that the plaintiff was 'almost' an illiterate and pardahnasin lady. It had not specifically been averred therein that she was brought to Jajpur by a false misrepresentation that she was required to execute a power-of-attorney. She had, on the other hand, stated that she was brought to Jajpur on 'some pretext' and two documents styled as deeds of gift were got executed and registered by her in favour of the two wives of her sons covering the entire suit properties. This Bench had occasion to examine the requirements of Order 6 Rule 4 of the C.P.C. in (1985) 2 Orissa LR 391 : (1985) 60 Cut LT 531 : (AIR 1986 Orissa 97) Padma Bewa v. Krupasindhu Biswal with regard to allegations of fraud and misrepresentation. It was observed and held :
"In a suit on the basis of fraud, the allegation of fraud must be clear, definite and specific. General allegations of fraud, unaccompanied by particulars, are insufficient to amount to an averment of fraud of which any Court can take judicial notice. (See AIR 1928 PC 261, Tom Boevey Barren v. African Products, Ltd., AIR 1937 PC 146, Bharat Dharma Syndicate, Ltd. v. Harish Chandra and AIR 1951 SC 280, Bishundeo Narain v. Seogeni Rai.) As has been laid down in AIR 1941 PC 93, A. L. N. Narayan Chettyar v. Official Assignee, High Court Rangoon, a charge of fraud, like any other charge of criminal offence, whether made in civil or criminal proceedings, must be established beyond reasonable doubt and a finding based on suspicion and conjecture cannot be upheld.
A plea of fraud is to be raised in the pleadings by giving the particulars thereof as required under Order 6, Rule 4 of the C.P.C. Pleadings should be concise, but they should also be precise:
When fraud is charged against a defendant, it is an acknowledged rule of pleading that the plaintiff must set forth the particulars of the fraud which is alleged. It is not enough to use such general words as 'fraud' 'deceit' or 'machinations'. The circumstances on which a plea of fraud is raised must be incompatible with the hypothesis of good faith. When misrepresentations are alleged, the party pleading them should state as to each misrepresentation, its date and whether it was made in writing or verbal and as to each verbal misrepresentation, the occasion thereof. While it is true that 'undue influence', 'fraud' and 'misrepresentation' are cognate vices and may, in part, overlap in some cases, they are in law distinct categories and, in view of Order 6, Rule 4, read with Order 6, Rule 2 of the C.P.C., required to be separately pleaded with specificity, particularity and precision. (See AIR 1976 SC 163 : Afsar Shaikh v. Soleman BhM)."
Judged by the aforesaid standards, the pleadings by the plaintiff-respondent 1 would fall far short of the mark. No allegations of fraud and misrepresentation giving particulars thereof have been mentioned in the plaint and vague evidence has been led at the trial to bring home a case of fraud and misrepresentation, as would be clear from the reasons to follow.
8. It is, no doubt, incumbent on the person transacting with a pardahnasin or illiterate lady to show that the terms are fair and equitable and that she had been given independent advice in the matter. Where a person sets up the validity of a deed executed by a pardahnasin or illiterate lady, the onus is upon him to establish that she had understood the nature and the effect of her act. This principle should also apply to the case of a poor lady who is equally ignorant and illiterate, but is not pardahnasin. The disposition made by such a lady must be substantially understood and must really be the mental act as its execution is the physical act of the person who makes it. The court must be satisfied that the deed had been explained to and understood by the party under disability under circumstances showing that the deed had been executed with full knowledge and comprehension. (See AIR 1986 Orissa 53 : (1985) 2 Orissa LR 417 : (1985) 60 Cut LT 487 Narayan Mishra v. Champa Dibya.
9. These well-settled principles were, however, misapplied in the instant case as the plaintiff-respondent 1 was neither a pardahnasin nor an illiterate lady and she was possessed of sufficient means and properties and was not a poor lady. As would be clear from the evidence from the side of the appellant, respondent 1, on her own accord, got prepared separate sheets showing allotment of lands in favour of her two sons and then in company with persons including her sons, came to Jajpur and got the two documents scribed according to her instructions and with reference to the sheets which had been prepared earlier. As it was late in the day, the respondent 1 herself took the documents with her and two days thereafter, came to Jajpur and got the deeds registered and she admitted the contents thereof before the Sub-Registrar. It was not a case in which both the deeds had been executed and registered on the same day after misrepresentation. The facts that the two deeds were scribed in a particular day, carried back by the respondent 1 and were registered two days thereafter when the respondent 1 came again to Jajpur for registration would militate against her theory of fraud and misrepresentation.
10. The respondent No. 1 was a person who had been carrying on business jointly with her mother and on her death, herself. She had been having business in rice and in connection with that, had been attending the Biraja Hat at times, as admitted by her. Her two sons had stationery shops in the Biraja Hat for about twenty years and she used to carry their meals almost daily to their shops and she used to sell in their shops when they took their meals. Many shops adjoined the shops of her sons. She had performed the marriages of her daughter and sons. She had business in rice, mung, biri and lime stone after the death of her mother and was deputing her sons to different Hats and taking accounts from them orally. She had invested Rs. 4,000/-as capital. She had instituted Title Suit No. 169 of 1965 against Krushna Sahu and others for specific performance of contract at Jajpur and got a decree and had deposed in that suit. A large number of sale deeds had been executed in her favour and on her own showing, she had been attending the office of the Sub-Registrar in connection with the execution of those sale deeds and at that time, the deed writers Damodar Mohanty, Kanhu Charan Mohanty and Jadunath Mohanty had been obtaining her signatures and left thumb impressions in connection with the registration of the sale deeds. Two of these persons had scribed the two impugned gift deeds. All this is in the evidence of the respondent 1 herself. Her evidence in the court that on the day of execution, she became senseless and she was carried in a rickshaw by her sons and had been brought only for one day had not been pleaded in the plaint and had not been substantiated.
11. Notice has been taken by the learned Subordinate Judge that although the respondent 1 knew how to sign, there was no reason as to why her left thumb impressions were taken on the deeds without taking note of the fact that as deposed to by the scribe and attesting witnesses, the plaintiff-respondent 1 herself volunteered to put her left thumb impressions so that there might be no future trouble. The learned Subordinate Judge has committed an error of record by saying that although according to the evidence from the side of the defendant 1 (appellant), Nira had put her left thumb impressions, the same did not appear in the deeds of gift although her left' thumb impressions duly attested would appear in the gift deed (Ext. A).
12. The respondent 1 has testified that she had not given her consent for mutation of the suit lands in favour of the appellant in the Municipal and Tahsil Offices and no notice had been served regarding mutation. Her evidence with regard to non-service of notices could not glibly be accepted as proclamation had been issued inviting objections and this would be noticed from the evidence adduced from the side of the appellant. As earlier indicated, the fact remained that it was not the respondent 1, but the appellant who had been in possession of the lands and had been paying rent and taxes. On her own showing, the respondent 1 had not been paying rent and taxes for the suit lands and the house and she could not say if the appellant had been paying rent and holding taxes after getting her name mutated.
13. The evidence of P. W. 3 examined in support of her case of fraud and misrepresentation was not only vague, but also highly interested, as he had been looking after the properties on behalf of the respondent 1 after the institution of the suit, as admitted by him in his cross-examination.
14. The evidence of D. W, 2 would show that on Jan 15,1968, a list of properties in the name of the respondent 1 who was the exclusive owner thereof had been prepared as she had expressed to execute two separate deeds of gift in favour of the defendants and on Jan. 16, 1968, two allotment sheets were prepared, as agreed to by the respondent 1 who kept those lists. It was then that on Jan. 18, 1968, the respondent 1 went to Jajpur for having the deeds executed and registered about which evidence had been led through D. Ws. 1 and 3. D. W. 1 was the scribe of Ext. A and D. W. 3 was an attesting witness in both the documents. Their evidence, which was of an independent character, would clearly show that fully understanding the nature and contents of the documents which had been scribed according to her instructions and had been read over and explained to the respondent 1 who had herself read the documents, the respondent 1 went back home, came two days thereafter and got the two deeds of gift registered after admitting the contents thereof before the Sub-Registrar. No doubt, the entire properties of hers had been gifted away and this is a circumstance which the court would keep in mind when judging a case of fraud and misrepresentation, but by itself, this circumstance does not establish any such plea. Admission of the executant before the Sub-Registrar would not, by itself, prove due execution and negative a case of fraud or misrepresentation, as sometimes a person under influence or disability may make an admission without understanding the nature and contents of the document under registration, but the fact that the respondent No. 1 herself produced the two documents and admitted their execution before the Sub-Registrar and put her left thumb impressions would establish the case of the appellant that voluntarily and with full knowledge of the contents of the two documents, the same had been executed by the respondent No. 1.
15. There was no evidence worth the name that at the time of execution and registration of the two deeds, the plaintiff-respondent No. 1 had been suffering from any physical incapacity or disability. She was a lady who had been doing business for quite a number of years and had been a transferee in respect of a number of sale deeds. She had been visiting Hats and taking accounts from her sons with regard to her business. She had studied in the school and she had been reciting Puranas, as would appear from the evidence adduced from the side of the appellant. It would not stand to commonsense, much less to reason, that such a person would be a victim of fraud and misrepresentation at the hands of her two sons. There seems to be enough force in the contention from the side of the appellant that the suit had been got instituted by Banshidhar, the brother of the husband of the appellant, after the two brothers had fallen out.
16. In a similar case reported in (1985) 2 Orissa LR 84 : (AIR 1985 Orissa 274) Madan Charan Das v. Padan Charan Das, a case of fraud and misrepresentation with regard to the execution of a document had been negatived by this Court.
17. For the foregoing reasons, we are of the view that the findings recorded by the learned Subordinate Judge are wrong and contrary to law.
18. In the result, the appeal succeeds. The judgment and decree passed by the learned Subordinate Judge are set aside. The suit stands dismissed. In the circumstances of the case, we would make no order as to the costs of this appeal.
P.C. Misra, J.
19. I agree.