Orissa High Court
Kuma Dei vs Md. Abdul Latif on 6 August, 1993
Equivalent citations: AIR1994ORI111, AIR 1994 ORISSA 111, (1993) 2 ORISSA LR 56 1993 (2) ORISSALR 568, 1993 (2) ORISSALR 568
Author: D.P. Mohapatra
Bench: D.P. Mohapatra
JUDGMENT D.P. Mohapatra, J.
1. Heard. The short question that falls for determination in this second appeal is whether on facts and in the circumstances of the case, courts below are right in holding that due execution of agreement Ext. 5 has been proved?
2. Defendant No. 1 in the suit filed the second appeal against concurrent decisions of the courts below decreeing the suit and directing her to execute the sale deed conveying the suit property to the plaintiff on receiving the amount stipulated in the agreement and granting certain other consequential reliefs.
3. The case of the plaintiff, shortly stated, was that two documents were executed on 15-11-75, a sale deed by the plaintiff in favour of defendant No. 1 and the agreement Ext. 5 by defendant No. 1 in favour of the plaintiff agreeing to reconvey the self same property in his favour. The dispute arose when defendant No. 1 went back on the agreement and avoided to execute the sale deed as stipulated in it. Therefore, the plaintiff filed the suit seeking a direction to defendant No. 1 to accept the amount mentioned in the agreement and to execute the sale deed transferring the suit property in his favour within a stipulated time, failing which the court should execute the same on her behalf on accepting the consideration money which was in deposit. It was alleged by the plaintiff that previously the suit property had been mortgaged by him with defendant No. 1 and since he was not able to repay the amount within the stipulated period the aforementioned arrangement was entered at the instance of defendant No. I in order to avoid certain complications in her money lending business. While he performed his part of the agreement by executing the sale deed Ext. A and was ready and willing to pay the consideration money as per the stipulation in the agreement Ext. 5, defendant No. 1 avoided executing the document on one plea or the other.
4. The case pleaded by the defendant No. 1, on the other hand, was that the plaintiff executed the sale deed by transferring the suit property in her favour. She had no doubt put her signature on a stamp paper but had no knowledge about the nature and/or contents of the document. Indeed, she had not agreed for reconveyance of the property in favour of the plaintiff and had no intention to do so.
5. Both the parties led evidence in support of their respective cases. The scribe of the two documents in question (Ext. A and Ext.5) was examined as P.W. 4.
6. On assessment of the evidence on record both the courts below held that the plaintiff had executed the sale deed Ext.A in favour of defendant No. 1; that the agreement Ext. 5 containing the stipulation for reconveyance of the property was duly executed by defendant No. 1; that the defendant No. 1 though an illiterate lady (capable of signing her name in Oriya) had independant advice from her father (defendant No. 2) at the time of execution of the document in question and she had put her signature on the document after fully understanding its contents. On these findings it was held that due execution of the agreement (Ext. 5) was proved and therefore defendant No. 1 was bound to reconvey the property on the conditions stipulated in it. The suit was decreed accordingly.
7. The sole contention raised by Sri P. Kar, learned Counsel for the appellant was that the plaintiff who is the beneficiary of the agreement Ext. 5 has failed to discharge the heavy burden placed on him to establish due execution of the agreement Ext. 5. Elucidating the point. Sri Kar submitted that in view of the undisputed factual position that defendant No. 1 is an illiterate lady, it was incumbent on the part of the plaintiff to establish by cogent and acceptable evidence that not only she had signed on the document, but had done so after its contents were read over and explained to her and after understanding the same. According to Sri Kar, the evidence led in the suit, particularly the testimony of P.W. 4, does not satisfy the requirement of law about the execution of the document and therefore the courts below erred in law in holding that the document was validly executed.
The learned counsel for the respondent contended that since the document was marked without objection it is not open to the appellant to raise the objection relating to due execution of the document.
8. The position has to be accepted as well settled that the requirement of law in case of a pardanashin lady also extends to an illiterate lady. In the case of Narayan Mishra v. Champa Dibya (dead), AIR 1986 Orissa 53 a Division Bench of this Court construing Section 111 of the Evidence Act held that in the case of execution of a deed by a pardanashin or illiterate lady, the law protects her by demanding that the burden of proof shall in such cases rest not with those who attack, but with those who rely on it; that it must be proved affirmatively and conclusively that the deed was not only executed by, but was explained to and really understood by the grantor; that ordinarily, the courts insist on proof that the lady had independent legal advice although this may not be on absolute and invariable rule and there may be exceptions when the lady is shown to have business capacity and strength of will and the deed is shown to be in the circumstances not an unnatural disposition of her property.
The Apex Court in the case of Mst. Kharbuja Kuer v. Jangbahadur Rai reported in AIR 1963 SC 1203, dealing with execution of document by a pardanashin lady ruled that as regards documents taken from a pardanashin woman, the court has to ascertain that the party executing them has been a free agent and has been duly informed of what she was about; that the reason for this rule is that the ordinary presumption that a person understands the document to which he has affixed his name does not apply in the case of a pardanashin woman; that the burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardanashin lady to establish that the said document was entered into by her after clearly understanding the nature of the transaction; that it should be established that it was not only her physical act but also her mental act and that the burden can be discharged not only by proving that the document was explained to her and that she understood it but also by other evidence, direct and circumstantial. The Court placed reliance on the decisions of the Privy Council reported in AIR 1925 PC 204 and AIR 1940 PC 134.
9. Testing the facts of the present case as revealed in the evidence on record in the light of the principles enunciated in the aforementioned decided cases, it is manifest that the only evidence relating to execution of the document Ext. 5 is the testimony of P.W. 4. The said witness has stated that Exts. 4 and 5 were scribed on the instructions of defendants 1 and 2; that both the documents were scribed by him simultaneously; that the defendant No. 1 knows only how to sign, she can neither read nor write. Significantly enough, the scribe has not made any statement that he had read over and explained the contents of the document Ext. 5 to defendant No. 1 and that she had put her signature on it after understanding its contents. Concededly, no other person present at the time of execution of the document has been examned as witness in the case. Even the defendant No. 2, father of the defendant No. 1 has not been examined as witness in the case. The courts below had laid stress on the facts that defendant No. 1 though an illiterate lady was aware of the transfer as she had taken a certain document from the plaintiff previously and further her father was present all along by her side when the document in question was executed. Even accepting these facts, the legal requirements as enunciated by the Supreme Court and this Court in the decisions noted earlier, are not satisfied, particularly in view of the absence of any evidence to show that the contents of the documents were read over and explained to the defendant No. 1 and that she had understood the same. As observed by the Supreme Court, this factual position could be established by direct evidence or circumstantial evidence. As noted earlier no such evidence has been noted in the judgments of the courts below and no such evidence was also placed before me to show her mental condition and her awareness of the nature and contents of the agreement Ext. 5. Further, in the facts and circumstances of the case, particularly in the backdrop of the mortgage deed previously executed by him in favour of defendant No. 1 and the arrangement in question arrived at by the parties when the plaintiff was unable to repay the mortgage loan, there is nothing incongruous or unnatural in execution of the agreement for reconveyance of the property on full payment of the loan amount.
10. On the discussions in the foregoing paragraphs, I have no hesitation to hold that the courts below erred in law in accepting due execution of the document Ext. 5 and in decreeing the suit on that basis. Accordingly, the appeal is allowed; the judgment and decree of the lower appellate court is set aside, the suit is dismissed, but in the circumstances of the case there will be no order for costs.