Orissa High Court
Sri Kishore Ray Thakur Bije vs Smt. Basanti Kumar Das And Ors. on 4 August, 1993
Equivalent citations: AIR1994ORI113, AIR 1994 ORISSA 113
Author: G.B. Patnaik
Bench: G.B. Patnaik
ORDER G.B. Patnaik, J.
1. Plaintiff is the appellant against a reversing judgment in a suit for declaration of title and confirmation of possession on annulling the gift deed dated 24-9-1973 (Ext.C) executed by the plaintiff in favour of defendant No. 1 and for permanent injunction against the defendant.
2. Plaitiff s case, in brief, is that defendant No. 1 and her husband (defendant No. 2) were staying close by the plaintiffs residence. Defendant No. 1 is the plaintiff's husband's brother's daughter. While the plaintiff was ill and was suffering from severe chest pain, she wanted some money to meet the medical expenses and, therefore, she approached defendant No. 2 for a loan of Rs. 300/-. Defendant No. 2 insisted that some land should be given on mortgage. The plaintiff agreed to execute a mortgage deed and for that purpose went to the Sub-Registrar's Office and on the proposed mortgage deed put her thumb impression. The document in question had never been read over and explained to her and even that document could not be presented for registration before the Sub-Registrar on that day. The plaintiff was brought again to the Sub-Registrar's office later on 27-9-1973 on which date the document was registered and plaintiffs thumb mark was obtained on the registration receipt. The plaintiff received the sum of Rs. 300/- from defendant No. 2. In 1974, the plaintiff wanted to repay the amount and redeems the mortgage, but defendant No. 2 denied to have given any money to the plaintiff nor did he agree to return the document. When plaintiff called a pan-chayati, defendant No. 2 gave out that plaintiff had executed a deed of gift in favour of defendant No. 1 and, therefore, on being aware of the said fact, the plaintiff filed the suit. It was also alleged that taking advantage of her illiteracy and by practising fraud, the document (Ext.C) has been snatched away from her. The plaintiff further alleged that she continues to be in possession of the property and defendants 1 and 2 had never possessed the same.
3. Defendants filed their written statements denying the allegations made in the plaint. According to them the plaintiff out of love and affection towards defendant No. 1 executed the gift deed in question voluntarily out of her own free will and there has been no fraud or undue influence exercised upon her as alleged. It is their case that it is the plaintiff herself who fixed up the date for execution of the deed of gift and appeared herself before the Sub-Registrar, presented the document for registration which was duly read over to her and then she executed the same. Defendant No. 1 has also pleaded a case of oral gift made by the plaintiff in her favour.
4. On these pleadings, the learned trial Judge framed as many as 6 issues. On consideration of the materials on record on issues Nos. 3 and 4, the learned tral Judge came to hold that on the evidence led by the defendants it is impossible to say that the plaintiff executed the gift deed after understanding the nature and purport of the document and, therefore, no title accrued to defendant No. 1 by virtue of Ext.C. He further held that the cumulative effect of all the circumstances is that in all probability, the plaintiff was defrauded while she was executing Ext.C. In coming to the aforesaid conclusion, the learned trial Judge relied upon the ancillary findings namely that plainiff was an illiterate lady; that she was ill on the date of execution of the disputed document; that the certificate of the scribe appearing on Ext.C and his oral evidence do not show that the plaintiff understood the contents of the document and participated in the execution and that though specific allegations of fraud were made against defendants 2 and 3, none of them chose to come to the box to deny the allegations. With these findings, the trial Judge decreed the suit and came to hold that defendant No. 1 had acquired no title under Ext.C and plaintiff continues to be in possession over the disputed land.
5. Against the aforesaid judgment of the learned trial Judge, defendants preferred an appeal. The learned Additional District Judge has reversed the judgment and decree of the trial Judge on a finding that the plaintiff executed a deed of gift spontaneously and no fraud has been practised upon her in obtaining such gift deed and, therefore, plaintiff is not entitled to revoke the gift deed. With this conclusion the appeal having been allowed, the present second appeal has been preferred.
6. Mr. Mohanty appearing for the plaintiff-appellant contends that the lower appellate court has failed to bear in mind the question that in case of a deed executed by a paradanasin and illiterate lady, the rule evolved for protection of such a lady is to the effect that it must be established that the lady executed the document after the document was read over and explained to her and she executed the same on knowing the contents thereof and has confused with the doctrine of fraud or undue influence and such erroneous approach has vitiated the ultimate conclusion.
Mr. Misra appearing for the respondents, on the other hand, contends that all the. necessary findings having been arrived at, namely that the executant had independent advice and that she executed the deed on her own free will and that no fraud had ever been practised on her, it must be held that the lower appellate court came to the conclusion that the deed in question was executed by the executant after the document was read over and explained to her and that she executed the same after understanding the contents thereof.
7. In order to test the correctness of the rival submissions I have scrutinised the impugned judgment of the learned Additional District Judge. In paragraph 7 of the impugned judgment, the learned Additional District Judge came to hold that even though the plaintiff is an illiterate lady, yet she was quite capable to take care of her own affairs as a prudent man is capable to take care of his own affairs. By this conclusion, the protection afforded to an illiterate lady in relation to execution of document is not wiped off. Then in paragraph 8 of the judgment, the learned Judge considers the legal implications. Thereafter in paragraph 9, he again reiterates to the effect :--
".....it has been found by me that the plaintiff is a lady, who has been managing her own affairs and transacting all her business herself. .... "
Then in paragraph 11, he formulates the question for consideration, namely "whether there had been any fraud or undue influence practised upon the plaintiff in execution of the gift deed', and according to him unless it is established that she executed the gift deed on account of undue influence or fraud practised upon her, the plaintiff could have no right to revoke the gift deed, as the said deed is not otherwise defective from the angle of a gift deed. In my considered opinion, this approach of the learned Additional District Judge is wholly erroneous and he has failed to appreciate the requirements for establishing title on the basis of a deed executed by an illiterate and parcdanasin lady. The Supreme Court in the case of Mst. Kharbuja Kuer v. Jangbahadur Rai, AIR 1963 SC 1203, considered this question and held as follows (para 5) :--
"It is settled law that a High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact. In the instant case the learned Munsif and, on appeal, the learned Subordinate Judge found concurrently that the two widows put their thumb marks without understanding the true import of the document. Imam, J., in second appeal reversed the said findings on the ground that they were vitiated by an erroneous view of the law in the matter of burden of proof. The judgment, if we may say so with respect, consists of propositions which appear to be contradictory. The learned Judge after reviewing the case law on the subject, concludes his discussion by holding that it was the duty of the plaintiff to prove that there was fraud committed and that, as that had not been established, the question whether the document was read over and explained to the plaintiff, in his opinion, in the circumstances, did not arise. This proposition, in our view, is clearly wrong and is contrary to the principles laid down by the Privy Council in a series of decisions. In India paradahnashin ladies have been given a special protection in view of the socal conditions of the times they are presumed to have an imperfect knowledge of the world, as, by the pardah system they are practically excluded from social intercourse and communion with the outside world...."
The Court further observed that the rule evolved for the protection of paradanasin ladies should not be confused with the other doctrines such as fraud, duress and actual undue influence, which apply to all persons whether they be paradanasin ladies or not. This being the position of law, if the plaintiff alleges fraud, then plaintiff must establish the same. But if the plaintiff is an illiterate or paradanasin lady and alleges fraud and fails to establish fraud, yet the defendant must establish the fact that the plaintiff executed the document after the document was read over and explained to her and after she understood the contents thereof. This protection which law affords to a paradanasin or illiterate lady has not been borne in mind by the learned Additional District Judge, who proceeds with his discussion on the question of fraud or undue influence and finally comes to the conclusion that the plaintiff executed the gift deed spontaneously and no fraud has been practised upon her in obtaining such gift deed and, therefore, she could not revoke the gift deed in question. Mr. Misra's contention is that the fact that he has found that the gift deed was executed spontaneously should bring within its sweep the other necessary ingredients like the document was read over and explained to her and she executed the deed after understanding the contents thereof. I am unable to accept this contention of the learned counsel for the respondents. The very approach of the learned Additional District Judge being erroneous, as stated above, and in the absence of any positive finding that the deed was read over and explained to the plaintiff and she executed the same after understanding the contents thereof, the impugned judgment cannot be sustained.
8. Mr. Misra appearing for the respondents further urges that though there might not have been a positive finding as required in law, but the materials on record are simple to establish that the plaintiff executed the document after the document was read over and explained to her and that she understood the contents thereof. Since this Court will not be entitled to examine the evidence to come to a conclusion one way or other, it would be meet and proper to remit the title appeal in question to the lower apellate court for re-disposal of the same in accordance with law.
9. The impugned judgment and decree are accordingly set aside and the title appeal in question is remanded for re-disposal of the same after giving an opportunity of hearing to the parties concerned. The parties may appear before the lower appellate Court on 30th of August, 1993, who shall thereafter proceed with the matter and dispose of the appeal. The lower appellate Court is directed to dispose of the appeal within three months from the date of receipt of the records. The records may be sent back to the lower appellate court immediately.