Orissa High Court
Smt. Hiramani Swain (Dead), Chaitan ... vs Ramesh Chandra Senapati And Others on 26 March, 2001
Equivalent citations: 2001(I)OLR648
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. The plaintiff is the appellant against a reversing decision. The suit is for declaration of title, confirmation of possession and permanent injunction in respect of "Kha" Schedule property. It is not disputed that 'Kha' Schedule property is a part of 'Ka' Schedule property which originally belonged to one Gayaram Bhanj, who had two wives Khiramani and Bilasini. The plaintiff is the only daughter of Gayaram born through Khiramani. After the death of Gayaram, the two widows succeeded to the the property. Subsequently, the plain-plaintiff's mother had executed a deed of gift in respect of her half share of the property in favour of the plaintiff. It is alleged that the step-mother also donated her share by oral gift and the plaintiff thus became the owner of the entire 'Ka' Schedule property. On 14-6-1945, Sidheswar Senapati, the predecessor-in-interest of defendants 1 to 6, managed to obtain a registered sale deed from Bilasini even though the contents of the document had not been read over and explained to her. This was in respect of half share of Bilasini. Subsequently, the aforesaid Sidheswar managed to obtain another document from the plaintiff on 31-3-1952. It is claimed that Bilasini was an illiterate person and similarly the plaintiff was also an illiterate Paradanasin lady and the documents had been obtained fradulently without explaining the contents thereof. The plaintiff came to know about such transaction only in 1977 forcing her to file the suit thereafter.
2. The defendants in their written statement denied the plaint allegations. It was stated that both the sale deeds had been validly executed. It was also pleaded that the plaintiff had earlier filed O. S. No. 231 of 1951-I for declaration that the sale deed by Bilasini was null and void. There was an amicable settlement outside the Court and in view of such amicable settlement, Sidheswar executed a sale deed in favour of the plaintiff in respect of Ac.1.69 1/2 decimals of land and the plaintiff executed a sale deed for Rs.500/- in respect of Ac.1.77 decimals of land. It was also claimed that the aforesaid suit was subsequently dismissed for default and in view of the provisions contained in Order 9, Rule 9, C. P. C., the subsequent suit is not maintainable.
3. The trial court found that the sale deeds purported to be executived by Bilanasini and plaintiff had not been read over and explained to the executants who were illiterate and Paradanasin ladies and as such, the sale deeds were not binding on them and there was no legal necessity for alienation by Bilasini and plaintiff and the plaintiff was all along in possession of the disputed land. It was further found that the defendants had failed to prove about the filing of the earlier suit and as such. Order 9, Rule 9, C. P. C. was not a bar. On the aforesaid findings the suit was decreed.
4. In appeal, the lower appellate court has reversed the decree of the trial court and dismissed the suit on the following findings :--
(i) The sale deed of the year 1945 being a 30 year old document there was presumption regarding its correctness ;
(ii) The plaintiff has not been able to prove the fraud in the matter of execution of the sale deed and both the sale deeds had been duly executed ;
(iii) The dismissal of the earlier suit for default stood as a bar in respect of the properties covered in the earlier suit.
5. At the time of admission of the appeal, it was indicated that the questions raised in ground Nos. 'A' to 'D' of the memorandum of appeal raise substantial questions of law. The relevant portions of the aforesaid grounds are quoted hereunder:--
"(A) Whether the learned lower appellate court was correct in reversing the judgment of the learned trial court on the ground that the plaintiff has failed to discharge the burden to prove that the sale deeds of 1945 and 1952 were null and void being vitiated by fraud in totally misconstruing the plaintiff's case of void character of the sale deeds in view of the protection given in law to paradanasin illiterate ladies in the matter of execution of a document ?
(B) (iii) Whether under the facts and circumstances of the case, the present suit could be held to be barred under Order 9, Rule 9 of the Code of Civil Procedure ?
(C) Whether in view of the fact that finding of possession and finding that Bilasini and plaintiff were illiterate paradanasin ladies who had not been explained the contents of the sale deed of the years 1945 and 1952 respectively, the decision of the lower appellate court could be substained ?
(D) Whether the finding of the learned lower appellate court that the sale deed of 1945 being thirty year old would be presumed to be validly executed, is correct in law ? "
6. At the time of hearing of the appeal, the learned counsel appearing for the appellants reiterated the contentions raised in the aforesaid grounds. So far as the transaction with Bilasini is concerned, the lower appellate court has relied upon the presumption available under section 90 of the Evidence Act.
The learned counsel appearing for the appellants has submitted that when the question of execution by a paradanasin lady crops up, the person benefiting from such transaction cannot fall back upon the presumption available under section 90 and has to prove that the document in question had been duly executed in the sense that it had been read over and explained to the executants and the executants had signed it after understanding the contents thereof.
7. There cannot be any doubt that the person depending upon the transaction by an illiterate paradanasin lady has to prove that the document had been duly executed, in the sense that it had been read over and explained to the lady and the lady had executed the same after understanding the contents thereof. This, however, does not mean that the provisions of section 90 of the Evidence Act would not be attracted to any transaction by any illiterate paradanasin lady. If that were so, it would be almost impossible to prove about the due execution in respect of any old transaction by any paradanasin illiterate lady, if such transactions are impugned after a long lapse of time as direct evidence on the point would not be readily available. Section 90 of the Evidence Act is as follows :--
" 90. Presumption as to documents thirty years old-
Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to be executed and attested."
The aforesaid provision enables the Court to raise presumption regarding due execution of the document if the document is thirty years old and is produced from proper custody, The expression "duly executed" does not mean that only the signature of the executant is to be presumed to be of that person. The presumtion is regarding its due execution. In other words, when such presumption is justifiably raised, it means that the document had been read over and explained to the executant and the executant had signed the same after understanding the contents thereof. It is of course, correct that the Court is not bound to raise such presumption in all cases, as the section itself indicates that "the Court may presume". However, where such presumption is justifiably raised, such presumption is relating to "due execution" and not merely regarding the signature. In this connection, the decisions reported in A.I.R. 1949 Allahabad 733 (Chandi v. Kali Charan and others) ; A. I. R. 1958 Orissa 26 (Ramakrushna Mohapatra and others v. Gangadhar Mohapatra and others) may he seen. The reliance placed by the counsel for the appellants on the decision reported in A.I.R. 1931 Oudh, 103 (Mt. Afsar Begum and another v. Muhammad Yusuf and others) is of no assistance.
8. So far as the second transaction is concerned, of course, no such presumption under section 90 of the Evidence Act is available, nor it has been raised by the appellate court. The appellate court has, however, relied upon certain circumstances to come to a conclusion that the document had been duly executed. It is, of course, true that the lower appellate court was not correct in observing that whenever a document is executed, it is for the executant to prove the fraud. It is well-known that when any transaction is made by a paradanasin lady, the person claiming the benefit under the transaction has to prove that the document had been read over and explained to the person concerned and had been duly executed after understanding the contents thereof. In the present case, however, the lower appellate court has noticed the relevant materials on record to come to a conclusion that the document had been read over and explained to the plaintiff and she had understood the contents thereof. The entire materials on record have to be judged and the question should not be examined in isolation. In the present case, the plaintiff had alleged that her husband was not pulling on well with her and had actively connived in obtaining a document in 1952 from her. The lower appellate court has observed that the plaintiff had admitted that her husband was looking after the case and was remaining present on the dates of hearing. The basic allegation of the plaintiff that her husband had managed to get the sale deed in' favour of Sidheswar, who was the brother-in-law (sister's husband) of plaintiff's husband, has riot been established. On the other hand, the lower appellate court' has rightly drawn adverse inference for non-examination of the husband, particularly in view of the admission of the plaintiff that her husband was looking after the case. That apart, the plea advanced by the defendants to the effect that the sale deeds had been executed in view of the amicable settlement of the earlier suit, has a ring of truth around it. The conclusion of the lower appellate court that both the sale deeds had been duly executed by the executants is apparently a finding of fact. In this connection, the trial court had observed that the defendants had failed to prove that the earlier suit had been filed in respect of some of the disputed properties. However, the lower appellate court has relied upon the relevant materials on record to come to a conclusion that, in fact, the present plaintiff had filed a suit in the year 1951 seeking to annul the transaction made by Bilasini. There is no doubt that the suit in respect of the transaction with Bilasini, which is being impugned presently, is based on the same cause of action as was available in the year 1951. Since the aforesaid suit had been dismissed for default and had not been subsequently restored (in fact, no application for restoration seems to have been filed), the subsequent suit in respect of transaction made by Bilasini must be held to be barred by principles under Order 9, Rule 9, C. P. C. Moreover, the very fact that the plaintiff has tried to suppress the filing and ultimate dismissal of such a suit is a circumstance in favour of the allegation of the defendants that the dispute had been amicably settled and subsequently the sale deed had been executed by the plaintiff in favour of the predecessor-in-interest of the defendants. The very fact that the predecessor-in-interest of the defendants has also executed another sale deed (certified copy whereof has been proved) also supports such a contention.
9. For the aforesaid reasons, I am unable to accept the contentions raised by the learned counsel for the appellants. The Second Appeal is accordingly dismissed. However, there would be no order as to costs.
10. Second Appeal dismissed.