Orissa High Court
Dasarathi Sahu vs Rabin Kumar Sahu And Others on 12 January, 2018
Author: D. Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA, CUTTACK
R.F.A. NO. 239 OF 2004
From the judgment and decree dated 13.08.2004 passed by the
learned Civil Judge (Senior Division), Keonjhar in T.S. No. 41 of
2002.
.........
Dasarathi Sahu ....... Appellant.
-:: VERSUS ::-
Rabin Kumar Sahu & others ....... Respondents.
For Appellant :::: M/s. M.R.Mishra,B.B.Sinha,
advocates.
For Respondents :::: M/s. S.S.Das-1,S.R.Dash,
K.K.Rath, G.N.Nanda,
G.C.Moharana,S.K.Kanungo,
S.Satpathy,P.K.Sahoo,
Advocates.
.........
PRESENT:
THE HON'BLE MR. JUSTICE D.DASH
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Date of hearing- 14.12.2017 : Date of judgment- 12.01.2018
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The unsuccessful plaintiff has filed this appeal
questioning the judgment and decree passed by learned Civil Judge
(Senior Division), Keonjhar in Title Suit No. 41 of 2002.
The appellant as the plaintiff had filed the suit for
partition of the properties described in Schedule A of the plaint
which has been dismissed.
2. For the sake of convenience, in order to avoid confusion
and bring in clarity, the parties hereinafter have been referred to as
they have been arraigned in the trial court.
=2=
3. Case of the plaintiff:- That the parties are Hindus
and governed by the Mitakshara School of Hindu Law. The
genealogy given in the schedule -B of the plaint is to the effect that
Fakira and Bhikari were two brothers. Fakira died leaving behind
his two sons namely, Chintamani and Benudhar. Chintamani died
leaving behind three sons namely, Natabar, Dasarathi, the plaintiff
and Giridhari, the defendant no. 6 and a daughter who has been
arraigned as defendant no. 7. Benudhar pre-deceased Chintamani
leaving behind his widow Usha and two daughters arraigned as
defendant no. 8 & 9. Defendant no. 1 and 2 are the two sons of
Natabar and defendant no. 3 to 5 are their three sisters. Bhikari
being dead, the defendant no. 10 to 14 presently stand as his
successors. Purchasers of different portions of the suit land have
been joined in this suit as defendant no. 15 to 18.
It is stated that after death of Benudhar, Usha had
instituted a suit for partition i.e. OS No. 45/52 which had been
decreed and in that suit, land measuring an area of Ac. 0.084
decimals situated in village Atoperbada Pokharitola had been kept
segregated and allotted for meeting the maintenance of Fakira's
widow namely, Sula Bewa. It is further stated that after partition,
Chintamani constructed a house over his share of land and started
living separately from Usha. The plaintiff being in Government
service in view of insufficiency of accommodation in the allotted
=3=
homestead of Chintamani, lived in a rented house and then
subsequently resided in the house of Usha on payment of rent. Sula
and Chintamani stated to have died on 13.07.1972 and 12.09.1972
respectively.
In the record of right published in the hal settlement lot
1 of schedule-A land has been recorded in the name of the heirs of
Chintamani and Benudhar; lot -2 land have been recorded in the
name of Chintamani even though Ac. 0.10.1/2 decimals of land was
allotted to him and Ac. 0.091/2 decimals had been allotted to Usha
in that earlier partition suit i.e. O.S. No. 45/52. After death of Usha,
defendant no. 8 & 9 sold their interest in the said properties
described in lot-1 of Schedule-A and the land to the extent of Ac.
0.09.1/2decimals, from lot-2 of schedule-A to the plaintiff by two registered sale-deeds dated 10.04.1978. The plaintiff thus, claims his exclusive entitlement to Ac. 0.09.1/2 decimals of lands from lot- 2 of schedule-A besides the interest of defendant no. 8 & 9 over the property under lot-1 of schedule-A. It is next stated that the land in lot-3 of schedule-A given to Sula, wife of Fakira for maintenance, was however recorded in the name of heirs of Chintamani in the hal settlement. It is averred that the properties described in lot-4 of schedule-A being the property of Fakira which he had got from his brother was also jointly recorded in the name of Fakira and Bhikari.
=4= Plaintiff asserts that since he was in Government service and most of the time was staying in his work place far away from the native place and as his elder brother Natabara was not keeping good health, the settlement operation went unattended by them when for that Gridhari who was not at all looking after the family affairs also did not take any interest. However, it is said that the plaintiff has been paying the rent regularly for such lands. It has been pleaded that Natabar and his widow died on 27.05.1991 and 19.09.1999 respectively.
It is averred that defendant no. 1, 2 and 6 did not allow the plaintiff to possess any part of their ancestral house, for which the plaintiff approached defendant no. 1, 2 and 6 for partition of the said suit land standing recorded jointly and for carving out his 1/3rd share from out of the land of Chintamani. The defendant no. 1 to 6 did not accept the said request. The dispute therefore had been carried by the plaintiff to the court of law by filing a suit for partition i.e. T.S. No. 132 of 1999. The same has however been dismissed for non-joinder of defendant no. 8 and 9 as parties to it.
Thereafter, the plaintiff claims to have again approached defendant no. 1 to 6 on 01.03.2002 for partition of the suit land and that demand having not been acceded to, the present suit for partition has been filed for carving out the share of =5= Chintamani and allotment of share of Usha over the land exclusively in favour of the plaintiff.
4. Defendant no. 1, 2 and 6 filed one set of written statement whereas the defendant no. 8 and 9 together filed their written statement and defendant no. 15, 16, 17 and 18 filed their written statement separately.
The defendant no. 15 to 18 admit the case of the plaintiff and allotment of respective purchased land and accordingly join the plaintiff in his prayer for partition.
The other contesting defendants have challenged the maintainability of the suit on the ground of lack of cause of action, suit being barred by limitation, principle of resjudicata and estoppel and also as being barred for non-joinder and mis-joinder of parties. More importantly, they also pray for dismissal of the suit as the properties have already been partitioned and accordingly under separate possession of the parties as per the allotment.
5. Case presented by the Defendant nos. 1, 2 & 6:-
Fakira and Bhikari were living separately after having an amicable partition of joint family properties. In the partition by metes and bounds as effected pursuant to the decree in O.S. No. 45/52, land measuring Ac. 0.89 decimals out of lot-3 was kept towards the maintenance of Sula Bewa, widow of Fakira and after her death, it has been partitioned amongst the plaintiff, his brother and legal =6= heirs of Benudhar. It is stated that the property falling in the share of Chintamani in the said suit was amicably partitioned in the year 1975 as amongst the heirs of Chintamani and defendant no. 7 relinquished her shares in favour of all her brothers. Admitting such partition, the plaintiff has transferred some lands. Two strangers have also purchased land from the plaintiff and he has also purchased land from defendant no. 8 & 9. So, it is stated that he is estopped from seeking partition of the suit land afresh, moreso when the plaintiff and his sons have also effected partition of their lands in the year, 1997 by an agreement evidencing the same which in turn provides great strength that the partition as decreed in O.S. No. 45/52 have been fully acted upon and later on with the partition of whatever left out portion as those were and that subsequent conduct being a conduct favourably to hold partition.
6. Case projected by the defendant nos. 8 & 9:-
Advancing a counter claim, it is stated that they are exclusively possessing and enjoying the land allotted to the branch of Benudhar in O.S. No. 45/52. It is stated that after death of Sula, they have been enjoying half share from the same and after death of Usha they are enjoying the other suit properties. The sale-deeds dated 10.08.1978 purported to have been executed by them is attacked as illegal, void and in-operative; that too have never been executed by them, without any intention to transfer the land in favour of the =7= plaintiff. Those are also said to be without any consideration; the executants being unaware of the contents and purpose of execution of the deeds as stated attack those to be the outcome of fraud practised by the plaintiff upon them. It is further stated that after their marriage, they have been residing in their in-laws place and the plaintiff was looking after their properties on their behalf and upon him they had reposed full confidence which have been abused in the above way and the faith has thus upon breached, taking undue advantage of relationship. It is also stated that in the month of April, 1978 on a day when these defendants had gone to attend the marriage ceremony to their father's place, the plaintiff told them to execute documents so as to authorize him to look after their property as without the same, he pleaded to have been facing much of difficulties and inconvenience in discharging his duties as the custodian of the properties and managing those property. So, as advised, these defendants executed documents so desired by the plaintiff, believing him in good faith which ultimately have been found to have been obtained and posed as sale-deeds.
7. The trial court on such rival case as projected by the parties, framed as many as eight issues. First two issues are regarding the maintainability and existence of cause of action for the suit; whereas the third one is on the point of limitation, attraction of point of principle of resjudicata and estoppel. The fifth issue =8= concerns with mis-joinder and non-joinder of parties. Issue no. 6 is the important one as to as regards prior partition of the suit land amongst the parties and thus barring the suit. The next issue i.e. issue no. 7 is inter mixed with issue no. 6. The other important issue is with regard to the validity of the two sale-deeds dated 10.04.1978.
The trial court on going through the evidence and upon their analysis in the touchstone of the of the rival case of the parties, keeping in view the settled position of law holding the field and as applicable has rendered composite answer to issue no. 6 & 7 against the plaintiff.
Answer to issue no. 4 has also been returned against the plaintiff and in favour of defendant no. 8 & 9. Such answers have lead the trial court to dismiss the suit in entirety and allow the counter claim as advanced by defendant no. 8 & 9, which are now impugned this appeal.
8. Learned counsel for the appellant submits that the suit ought not to have been dismissed because of the prior partition as is said to have been made in O.S. No. 45/52 and, the trial court has erred both in fact and law in holding so in the absence of proof of the plaint of the said suit, more particularly when the court below has not gone through the averments of the same so as to appreciate those on their proper perspective. He further submits that in this =9= case, the prior partition which has been held to be the reason for dismissal of the suit ought not to have been held to have been proved so as to negate the claim of the plaintiff for partition of the suit land as advanced in the suit. It is next submitted that the court below has erred in law by holding that the suit cannot proceed and as bad in the absence of Suka, widow of Chakradhar in presence of all other legal heirs i.e. sons and daughters of Chakradhar. He thus submits that the finding of the trial court on issue no. 6 & 7 are unsustainable and those ought to be answered in favour of the case of the plaintiff. He further submits that the court below has completely erred both on fact and law by answering issue no. 4 in favour of defendant no. 8 & 9 holding the sale-deeds to be illegal, void and in operative on acceptance of grounds as projected by defendant no. 8 & 9. It is contended that those sale-deeds having not been challenged within prescribed period of limitation, the court below ought not to have entertained such belated challenge made in the counter claim. He further submits that the trial court's discussion on evidence and their appreciation in factually concluding that the sale-deeds have no value in the eye of law for the reasons stated by the defendants is absolutely perverse and untenable. According to him, the evidence on record as well as the conduct of the parties in dealing with such properties if are cumulatively viewed, the conclusion has to be that the sale-deeds = 10 = are unimpeachable in the absence of any such legal or factual deficiency. In view of all these, he urged that the suit of the plaintiff be decreed as prayed for.
9. Learned counsel for the respondent nos. 1, 2 & 6 submitted all in favour of the finding returned by the trial court in respect of issue no. 6 & 7 as well as issue no. 4. According to him the evidence on record, on a bare reading clearly go to point out the answers as returned by the trial court in so far as issue no. 6 & 7 are concerned. It is submitted that the properties sought to be partitioned afresh have been in separate enjoyment since long which gets clearly revealed from the evidence; the parties have accordingly dealt with the said property in respect of their respective shares. In view of above, it is submitted that the conduct of the parties lead to a strong inference that the property now sought to be partitioned are no more available for being partitioned having lost their nature and character as joint family property and having been under the enjoyment of different parties separately.
It is further submitted that the finding of the trial court on issue no. 4 is based on proper appreciation of evidence both oral and documentary on record and the limitation can't stand on the way of impeaching the same as had been done by defendant no. 8 & 9 being on the ground of fraud and misrepresentation which has rightly been accepted by the trial court in finally allowing their = 11 = counter claim. He further submitted that with the relationship between so called vendors i.e. defendant nos. 8 and 9 and vendee the plaintiff and the faith and confidence reposed on the so called vendee, the plaintiff, the burden of proof that the sale-deed fulfilled all such criterias as regards due execution, passing of consideration, delivery of possession etc clearly lie upon the plaintiff and he having failed to discharge the same by leading acceptable evidence, the answer has been very rightly given against him.
10. The contentious issues here are issue no. 6 & 7.
It is not in a dispute that Fakira and his brother Bhikari were living separately after an amicable division of the joint family properties and possessing the lands separately. Thereafter the properties have been partitioned in metes and bounds amongst their legal heirs as per the decree passed in the O.S. No. 45/52. In the plaint, at para-2, it is stated that land measuring an area of Ac. 0.84 decimals at village Atoper Bada Pokharitala was remaining earmarked for the purpose of providing maintenance support to Sula, the wife of Fakira. This land is described in Schedule-A, lot 3. This fact is not in dispute; what the defendants coming to contest state is that said property had also later on been partitioned amongst the plaintiff and his brothers on one side and the legal heirs of Benudhar on the other. It is also stated by defendant no. 1, 2 and 6 that the properties which had fallen to the share of = 12 = Chintamani as per the decree in O.S. No. 45 of 1952 had been further partitioned orally and amicably in the year, 1975 amongst the heirs of Chintamani, whereafter the defendant no. 7 relinquished her interest in favour of the plaintiff and his brothers and that acknowledgement comes more importantly from the plaintiff who has also sold land to outsiders i.e. defendant no. 15 and 18 by the registered sale-deeds, when also the plaintiff claims on his own to have purchased lands from defendant no. 8 & 9, the daughters of Benudhara vide registered sale deeds admitted in evidence and marked Ext. 1 and 13. It is also seen that the plaintiff and his sons have partitioned the properties amongst themselves by an agreement in writing which has been admitted in evidence and marked Ext. 9.
The plaintiff during his examination on oath has specifically admitted as regards the partition as per the decree in O.S. No. 45 of 1952; allotment of separate land towards their shares to the co-sharers who are in separate possession. The plaintiff does not at all dispute the fact that he has sold lands to defendant no. 15 & 18 from out of the lands in his share and that said sales having been made, the factum of partition has been the basis for such sale to part with the title over the land as well as possession to those vendees i.e. defendant no. 15 to 18 clothing them with exclusive right, title and interest over the said sold land and also their right to = 13 = possess the same which is thus stated to be resting on them. The plaintiff has not come up with my sort of explanation in those matters either as regards the sale made by him as well as the partition of properties amongst him and his sons by an agreement in writing.
To add to the above, the plaintiff having staked his claim over portions of land as of his purchase from defendant no. 8 & 9, by such conduct he very much stakes his claim as a beneficiary in taking advantage of said factum of partition which has gone wholly unexplained by the plaintiff. The evidence on record as regards separate possession further provides support to it. In the above state of affair, mere joint recording of the lands in the record of rights cannot be taken as the circumstance to outweigh the finding of prior partition which reveals from the evidence as regards all the relevant factors standing to support that.
All these being taken cumulatively viewed, this court concurs with the finding of the trial court as has been returned which runs as:- "Under the above premises, it is necessarily to be held that the present suit land had been partitioned by metes and bounds and is therefore not available for partition."
11. Let us now come to next crucial issue as regards the validity of the registered sale deeds bearing no. 1337 and 1340 dated 10.04.1978 said to have been executed by the defendant no. 8 = 14 = and 9. The plaintiff when asserts his purchase of land by these registered sale deeds, the defendant no. 8 & 9 impeach their validity on various grounds including those of perpetration of fraud and misrepresentations and their counter claim is set forth on that score.
Admittedly, the defendant no. 8 & 9 are the daughters of the plaintiff's father's brother. Both these executants claim to be illiterate. Out of them only defendant no. 8 is seen to be knowing to sign whereas defendant no. 9 does not even know to sign as is evident from Ext. 1 and 13. They have also so stated giving out further fact that both are house wives and living in rural areas in their respective in-laws place. Admittedly, they have no full blooded brother and the plaintiff was quite capable in doing the management of the properties which they inherited from their father which he does not deny. So, with the relationship and status, the evidence of these defendant nos. 8 & 9 in support of their case that they had full faith and confidence upon the plaintiff cannot be straightway whittled down.
12. The settled position of law holding the field of proof of sale made by pardanashin ladies which has the applicability also to illiterate ladies hailing from rural background can be traced from the decision in case of "Farid-un-Nisha Vrs. Munishi Muktar decision of Privy Council; AIR 1925 P.C. 204":-.
= 15 = "The law throws around her a special cloak of protection. It demands that the burden of proof shall in such a case rest, not with those who attack, but with those who found upon the deed, and the proof must go so far as to show affirmatively and conclusively that the deed was not only executed by, but was explained to, and was really understood by the granter. In such cases, it must also, of course, be established, that the deed was not signed under duress, but arose from the free and independent will of the granter. The law as just stated too well settled to be doubted or upset. "
xxxxxx xxxxxx xxxxxx "The law of India contains well known principles for own disadvantage when they have not the usual means of fully understanding the nature and effect of what they are doing. In this it has only been given the special development, which Indian social usages make necessary, to the general rules of English Law, which protect persons, whose disability make them dependent upon or subject them to the influence of others, even though nothing in the nature of deception or coercion may have occurred. This is part of law relating to personal capacity to make binding transfers or settlements of property of any kind."
The position thus emerges that executant being a pardanashin woman, the deed was read out to her; it must further be shown that it was explained to her, or that she understood its conditions and effect; and that the explanation included all material points as well as the general nature of transaction. The principle upon which the law accords protection as above its founded on equity and good conscience.
" In the instant case the learned Munsif, and on appeal, the learned Subordinate Judge found concurrently that the = 16 = two widows put their thumb marks without understanding the true import of the document. Imam, J, in second appeal reversed the said finding on the ground that they were visited 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, pardanashin ladies have been given a special protection in view of the social conditions of the time : they are presumed to have an imperfect knowledge of the world, as by the paradah system they are practically excluded from social intercourse and communion with the outside world....
xx xx xx "...... The legal position has been very well-settled. Shortly it may be stated thus: The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a paradanashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was not only her physical act but also her mental act. 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."
= 17 =
14. As held by this Court in Chandal Bewa v. Madhav Panda and others XXVI (1960) CLT, 304, that when a question arises as to whether the document has duly been executed by an old and illiterate lady belonging to a village, in order that the documents may be enforced against her, or, as a matter of that, in order that it may be found by the Court that the documents were properly executed, the vendee must prove that the documents were read over and explained to the illiterate executant, who is a lady, and she knew the nature and character of the transactions while she became a willing party to the documents and particularly that she was aware of the acreage involved in the transactions.
On the aforesaid, this Court then has taken a view that there is no justification as to why a rule applicable to a paradanashin ladies on the ground of their ignorance and illiteracy should be restricted to that class only and should not also apply to the case of a poor lady who is equally ignorant and illiterate, but is not paradanashin, simply because she does not belong to that class, the object of the rule of law being to protect the weak and the helpless, the distressed and the down-trodden and it should not be restricted to a particular class or community. Even in the case of a lady who is outside the paradanashin class, it is for those who deal with her to establish that she had the capacity of understanding that she has been entering into the transaction voluntarily and with full knowledge and import of what the transactions actually meant. In case of Prasanna Kumar Giri vrs. Radhashyma Paul and others 70 (1990) CLT 720, it has also been so held. Same is the view taken in case of Kumadei Vrs. Md. Abdul Latif 1993(II) OLR 568. Reliance has been placed upon the decision in Smt. Kharbuja Kaer vrs. Jangbahadur and others; AIR 1963 SC 1203, that as regards documents taken from a paradanashin women, the Court has to ascertain that the party executing them has a free agent and = 18 = has been duly informed of what she was about that reason for the rule is; that ordinary presumption that a person understands the document to which he has affair his name does not apply in case of a paradanashin women: that burden shall always rests upon the person who seeks to sustain a transaction entered into with a paradanashin 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.
14. In case of "Krushna Chandra Patra and another Vrs.
Kami Bewa and another" 1988 (2) O.L.R.-582, it has been enunciated that the situation relating to the document executed by paradanashin women and illiterate person, the onus lies on the person who derives the benefit under the document to prove and establish that the executant had executed the document after having full knowledge of the contents as well as its effect and consequences. Further in case of "Rankanidhi Sahu Vrs. Nanda Kishore Sahu" AIR 1990 Orissa-64, this court while holding the principles governing proof of execution of document taken from paradanashin woman to be actually applicable to the document taken from an illiterate woman, reiterated further that the burden is heavy on the person getting advantage under the document to establish that the contents of the document were readover and explained to her, she understood the same, she had independent advise at the relevant time, and that the execution of the document was not only a physical act, but also a mental act. In the said case, while alternatively holding that the document under challenge therein was not merely executed, it was held to be void and = 19 = inoperative document conferring no title in respect of immovable property covered under the said transaction.
15. This court in case of "Narayan Mishra and two others Vrs. Champa Dibya" in (60) 1985 C.L.T.-487 have held that the disposition of such nature made must be found to have been substantially understood and must really be the mental act, as its execution is the physical execution of the person who makes it. The words of caution for the court are that the court must be satisfied that the deed has been explained to and understood by the party under disability either before execution or after it, under situations showing that the deed has been executed with the full knowledge and comprehension. Mere execution by such a person although not accompanied by duress, protest or obvious signs of understanding or one of comprehension itself not the real proof of true understanding mind of the executant. It must be proved affirmatively and concluded that the deed was not only executed by but also explained to and really understood by the grantor. The courts have been asked to insist the proof that the lady had independent legal advise although in variable terms depending upon the facts and circumstances of each case to case. Generally, the Courts have to demand affirmative to prove on the subject of the lady's intelligent understanding and execution of deed and the court would not repeatedly hold that this onus to have been discharged where it has not been shown that the lady had any independent advise. The true nature of transaction must be proved to have been understood by the executant.
16. The protection applicable to a pardanashin woman can be extended to illiterate and rustic village woman or to documents made by old, invalid inform and illiterate persons (Krisha Mohan Kul- vrs. Pratima Maity; AIR 2003 SC 5351) = 20 = In case of "Karunamayee Vrs. Maya" A.I.R. 1948 Cal.-84, it has been emphatically held that those who seek to affect paradanashin woman with liability under the instrument are bound to prove that they had knowledge of the nature and character of the transaction, that they had some independent and disinterested adviser in the matter; and that they executed the instrument fully understanding what they were about in doing so. In several other cases, it has also been held that when a Court in dealing with disposition of property by pardanashin woman ought to be satisfied that the transaction was explained to her specially in a case where, without legal assistance, she executed document written in a language she did not understand, which deprived of all her property { Ashgar V. Delroos I.L.R.-3 Cal. 324 (P.C.) and Amarnath Vr. Achan I.L.R. 14 All.-420 (P.C.) } Where an instrument has not been properly explained so that she did not understand its contents and effect or did not know what liabilities she was incurring, the transaction cannot stand".
17. In case of Satish V Kali Dasi 34 C.L.J.-529:-
"The position settled is that when the court is called upon to deal with a deed executed by a pardanashin lady, it must satisfy itself or evidence, first fact that the deed was actually executed by her with full understanding of what she was about to do; secondly, that she had full knowledge of the nature and effect of the transaction in which she is said to have entered; and thirdly, that she had independent and disinterested advise in the matter. The cases fall broadly into two groups, namely, first- the cases where the person who seeks to hold the lady to the terms of her deed is one who stood towards her in a fiduciary character; and secondly, the cases where the persons who seeks enforce the deed was an absolute = 21 = stranger. The court in former class of cases will act with great caution and will presume confidence put and influence exerted, in the later class of cases the court will require the confidence and influence to be proved intrinsically. If the confidence is reposed and it is abused, the court will grant relief."
18. In Shree Thakurjee Vrs. Ramdei, 59 M.L.J. 14 (P.C.) it has been held that where the facts disclose a confidential relation between the parties and also establish that the deed was harsh and unconscionable, the burden of proving absence undue influence rests on the party seeking to support the deed.
Its also the position settled in a plethora of decisions standing in a confidential relation towards others cannot entitle themselves to hold the benefits which those others have conferred upon them unless they can show to the satisfaction of the court, the person by whom the benefits have been conferred had competent and independent advice in conferring them.
19. Proceeding to test the facts and circumstances as revealed from the evidence on record in the light of the principles enunciated in the aforementioned decided cases, it is seen that the plaintiff has examined the scribe of the deeds i.e. Ext. 1 and 13 as P.W. 1. Both the deeds have been executed on the same day and by these two documents, the defendant no. 8 who is a signatory to the documents and defendant no. 9 who has subscribed her left thumb impressions purported to have wholly parted with all their property so inherited from their father. The beneficiary of the deeds is the plaintiff who is a Government servant and is none other than their = 22 = father's brother's son. P.W. 1 has stated that being the deed writer, he had written the deeds as instructed by the vendors (defendant no. 8 & 9) and after writing the deeds, he had read over the contents of those deeds to them. But he is silent as to who had given the vendors such advice, how the area could be ascertained and who calculated the same. The vendors being married, it is not stated that either their husband or any one from their side were then present. His evidence is thus silent that the vendors had any independent advice in the matter as also to the acreage involved in the transactions. The defendant no. 9 being examined as D.W. 1 has deposed in support of their case that they were made to understand by the plaintiff and do the needful in his favour so as to authorize him to manage their properties on their behalf having no intention to sell the properties. In this connection, if one goes to look into the aspect of payment of consideration, it appears from recitals that on that day of documentation, in respect of Ext. 1, a sum of Rs.500/- was paid since prior to that Rs.2000/- had already been paid in different phases whereas a sum of Rs.1000/- had been paid as against the total consideration of Rs.7500/- since before hand a sum of Rs.6500/- had been given in different phases in respect of sale deed Ext. 13. In this light when the evidence of the plaintiff (P.W.1) is glanced at, it is found that he has stated that there was payment of full consideration in respect of Ext. 1 and 13 prior to the = 23 = date of execution. Thus there arises grave suspicion on this aspect and it becomes clear that the recitals in Ext. 1 and 13 with regard to payment of consideration are false. The evidence of P.W. 1 on this score also becomes unacceptable. One of the vendors i.e. D.W. 1 says to have not been paid with any consideration and this P.W. 1 says that the consideration amount had been paid before. P.W.1 is silent as to who stated so to him about that and how and when the consideration had been agreed upon and so fixed. It is not clarified as to which vendor had received how much. In so far as possession of the lands is concerned, that is not of much significance in view of the explanation by defendant no. 8 and 9 that plaintiff being their father's brother's son was looking after their properties which goes in disputed.
20. Furthermore, the plaintiff though admits to have been managing the properties of defendant nos. 8 and 9, he is not coming forward to say as to when there came the proposal for sale and who had initiated it and as to when the consideration was fixed being agreed upon. He is not in a position to say as to when he had paid the consideration amount and to whom, whether to one or, dividing it between the two and if so as to in what proportion. Thus I find so that the trial court has committed no error in appreciating the evidence in holding the purported sales under Ext. 1 and 13 as void and inoperative with which this Court agrees without any hesitation = 24 = as the plaintiff has failed to discharge the burden of proof as aforesaid lying on his shoulder through acceptable evidence.
21. For the aforesaid discussion and reasons, the findings returned by the trial court on the above issue nos. 4, 6 and 7 receive their affirmation.
In view of the affirmation of the findings recorded by the trial court on the above issues, the final result of dismissal of the suit as laid, stands confirmed.
22. Resultantly, the appeal stands dismissed and in the facts and circumstances without cost.
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D. Dash, J.
Orissa High Court, Cuttack Dated the 12th day of January, 2018/ Narayan